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omestic Investigation and Operations Guide (U) PREAMBLE August 17, 2011 (U) As the primary investigative agency of the federal government, the FBI has the authority and responsibility to investigate all violations of federal law that are not exclusively assigned to another federal agency. The FBI is further vested by law and by Presidential directives with the primary role in carrying out criminal investigations and investigations of threats to the national security of the United States. This includes the lead domestic role in investigating international terrorist threats to the United States, and in conducting counterintelligence activities to counter foreign entities' espionage and intelligence efforts directed against the United States. The FBI is also vested with important functions in collecting foreign intelligence as a member agency of the United States Intelligence Community (USIC). (AGG-Dom, Introduction) (U) While investigating crime, terrorism, and threats to the national security, and collecting foreign intelligence, the FBI must fully comply with all laws and regulations, including those designed to protect civil liberties and privacy. Through compliance, the FBI will continue to earn the support, confidence and respect of the people of the United States. (U) To assist the FBI in its mission, the Attorney General signed the Attorney General's Guidelines for Domestic FBI Operations (AGG-Dom) on September 29, 2008. The primary purpose of the AGG-Dom and the Domestic Investigations and Operations Guide (DIOG) is to standardize policy so that criminal, national security, and foreign intelligence investigative activities are accomplished in a consistent manner, whenever possible (e.g., same approval, notification, and reporting requirements). In addition to the DIOG, each FBIHQ operational division has a policy implementation guide (PG) that supplements this document. Numerous FBI manuals, electronic communications, letterhead memoranda, and other policy documents are incorporated into the DIOG and the operational division policy implementation guides, thus, consolidating the FBI's policy guidance. The FBIHQ Corporate Policy Office (CPO) plays an instrumental role in this endeavor. Specifically, the CPO maintains the most current version of the DIOG on its website. As federal statutes, executive orders, Attorney General guidelines, FBI policies, or other relevant authorities change, CPO will electronically update the DIOG after appropriate coordination and required approvals. (U) This revised DIOG is a direct result of more than 700 comments received from field and Headquarters employees after release of the initial DIOG in December 2008. Each suggestion was reviewed by a working group comprised of experienced field agents and Chief Division Counsels, as well as representatives from the CPO, the Office of General Counsel (OGC), and the Office oflntegrity and Compliance (OIC). Many of these changes and suggestions have been incorporated in the revised DIOG. These changes to the DIOG should better equip you to protect the people of the United States against crime and threats to the national security and to collect foreign intelligence. This is your document, and it requires your input so that we can provide the best service to our nation. If you discover a need for change, please forward your suggestion to FBIHQ CPO. (U) Thank you for your outstanding service! Robert S. Mueller, III Director XXlX UNCLASSIFIED - FOR OFFICIAL USE ONLY Ve~s1011::::>ated: OttobPr l'i 20~ 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 1 1.1 §1 (U) SCOPEAND PURPOSE (U) SCOPE (U) The Domestic Investigations and Operations Guide (DIOG) applies to all investigative activities and intelligence collection activities conducted by the FBI within the United States, in the United States territories, or outside the territories of all countries. This policy document does not apply to investigative and intelligence collection activities of the FBI in foreign countries; those are governed by: A) (U) The Attorney General's Guidelines for Extraterritorial FBI Operations and Criminal Investigations; B) (U) The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (those portions which were not superseded by The Attorney General Guidelines for Domestic FBI Operations); C) (U) The Attorney General Guidelines on the Development and Operation of FBI Criminal Informants and Cooperative Witnesses in Extraterritorial Jurisdictions; D) (U) The Attorne y General Procedure for Reporting and Use of Information Concerning Violations of Law and Authorization for Participation in Otherwise Illegal Activity in FBI Foreign Intelligence, Counterintelligence or International Terrorism Intelligence Investigations (August 8, 1988; and E) (U) Memorandum of Understanding Concerning Overseas and Domestic Activities of the Central Intelligence Agency and the Federal Bureau of Investigation (2005). (U//FOUO) Collectively, these guidelines and procedures are hereinafter referred to as the Extraterritorial Guidelines in the DIOG. 1.2 (U) P URPOSE (U) The purpose of the DIOG is to standardize policies so that criminal, national security, and foreign intelligence investigative activities are consistently and uniformly accomplished whenever possible (e.g., same approval, opening /closing, notification, and reporting requirements). (U) This policy document also stresses the importance of oversight and self-regulation to ensure that all investigative and intelligence collection activities are conducted within Constitutional and statutory parameters and that civil liberties and privacy are protected. (U) In addition to this policy document, each FBI Headquarters (FBIHQ) operational division has a Policy Implementation Guide (PG) or several PGs that supplement the DIOG . These operational division PGs may not contradict, alter, or otherwise modify the standards established in the DIOG. As a result, numerous FBI manuals, electronic communications, letterhead memoranda, and other policy documents are incorporated into the DIOG and operational division PGs, thus , consolidating FBI policy guidance. 1-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver..,iun Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionall y Blank. UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 2 §2 (U) GENERALAUTHORITIESAND PRINCIPLES 2 .1 (U) AUTHORITYOF THEATTORNEYGENERAL'SGUIDELINESFOR DOMESTICFBI OPERATIONS , U) The Attorney General's Guidelines for Domestic FBI Operations (AGG-Dom) apply to investigative and intelligence collection activities conducted by the FBI within the United States, in the United States territories, or outside the territories of all countries. They do not apply to investigative and intelligence collection activities of the FBI in foreign countries, which are governed by the Extraterritorial Guidelines discussed in DIOG Section 13. (Reference: AGGDom, Part I.A.) (U) The AGG-Dom replaces the following six guidelines: AJ (U) The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations (May 30, 2002J; BJ (U) The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (October 31, 2003J; CJ (UJ The Attorney General's Supplemental Guidelines for Collection, Retention, and Dissemination of Foreign Intelligence (November 29, 2006J; DJ (U) The Attorney General Procedure for Reporting and Use of Information Concerning Violations of Law and Authorization for Participation in Otherwise Illegal Activity in FBI Foreign Intelligence, Counterintelligence or International Terrorism Intelligence Investigations (August 8, 1988J; EJ (UJ The Attorney General's Guidelines for Reporting on Civil Disorders and Demonstrations Involving a Federal Interest (April 5, l 976J; and FJ (UJ The Attorney General's Procedures for Lawful, Warrant less Monitoring of Verbal Communications (May 30, 2002J [only portion applicable to FBI repealed}. Certain of the existing guidelines that are repealed by the AGG-Dom currently apply in part - extrate rritorial operations, including the Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, and the Attorney General Procedure - ,. Reporting and Use of Information Concerning Violations of Law and Authorization for c1:micipation in Otherwise Illegal Activity in FBI Foreign Intelligence, Counterintelligence or ·emational Terrorism Intelligence Investigations. To ensure that there is no gap in the _ ! tence of guidelines for extraterritorial operations, these existing guidelines will remain in :feet in their application to extraterritorial operations notwithstanding the general repeal of these : .. ting guidelines by the AGG-Dom. • 1 L , lso, the classified Attorney General Guidelines for Extraterritorial FBI Operation and . minal Investigations (1993) will continue to apply to FBI criminal investigations, pending the _ ecution of the new guidelines for extraterritorial operations. Finally, for national security and :-eign intelligence investigations, FBI investigative activities will continue to be processed as _..- forth in the classified Memorandum of Understanding Concerning Overseas and Domestic ·n-ities of the Central Intelligence Agency and the Federal Bureau of!nvestigation (2005). 2-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 2.2 (U) GENERAL FBI AUTHORITIES UNDERAGG-DoM (U) The AGG-Dom recognizes four broad, general FBI authorities. (AGG-Dom , Part I.B.) (U) CONDUCTINVEST/GATIONSAND COLLECTINTELLIGENCEAND EVIDENCE 2.2.1 (U) The FBI is authorized to collect intelligence and to conduct investigations to detect, obtain information about, and prevent and protect against federal crimes and threats to the national security and to collect foreign intelligence, as provided in the DIOG (AGG-Dom, Part II). (U) By regulation, the Attorney General has directed the FBI to investigate violations of the laws of the United States and to collect evidence in investigations in which the United States is or may be a party in interest, except in investigations in which such responsibility is by statute or otherwise specifically assigned to another investigative agency. The FBI's authority to investigate and to collect evidence involving criminal drug laws of the United States is concurrent with such authority of the Drug Enforcement Administration (DEA) (28 C.F.R. § 0.85[a]). (U) PROVIDE INVESTIGATIVEASSISTANCE 2.2.2 (U) The FBI is authorized to provide investigative assistance to other federal , state, local, or tribal agencies , and foreign agencies as provided in Section 12 of the DIOG (AGG-Dom, Part III). (U) CONDUCTINTELLIGENCEANALYSIS AND PLANNING 2.2.3 (U) The FBI is authorized to conduct intelligence analysis and planning as provided in Section 15 of the DIOG (AGG-Dom, Part N). (U) RETAIN AND SHARE INFORMATION 2.2.4 (U) The FBI is authorized to retain and to share information obtained pursuant to the AGG-Dom, as provided in Sections 12 and 14 of the DIOG (AGG-Dom, Part VI). 2.3 (U) FBI AS AN INTELLIGENCE AGENCY (U) The FBI is an intelligence agency as well as a Jaw enforcement agency. Its basic functions accordingly extend beyond limited investigations of discrete matters, and include broader analytic and planning functions. The FBI's responsibilities in this area derive from various administrative and statutory sources. See Executive Order 12333; 28 U.S.C. § 532 note (incorporating P.L. 108-458 §§ 2001-2003) and 534 note (incorporating P.L. 109-162 § 1107). (U) Part IV of the AGG-Dom authorizes the FBI to engage in intelligence analysis and planning, drawing on all lawful sources of information. The functions authorized under that Part includes: (i) development of overviews and analyses concerning threats to and vulnerabilities of the United States and its interests; (ii) research and analysis to produce reports and assessments (see note below) concerning matters relevant to investigative activities or other authorized FBI activities; Ve ston )ated: Oc.ot'.:-r l"> 20, l 2-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 and (iii) the operation of intelligence systems that facilitate and support investigations through the compilation and analysis of data and information on an ongoing basis. (U) Note: In the DIOG, the word "assessment" has two distinct meanings. The AGG-Dom authorizes as an investigative activity an "Assessment," which requires an authorized purpose and objective (s) as discussed in the DIOG Section 5. The United States Intelligence Community (U SIC), however, also uses the word "assessment" to describe written intelligence products as discussed in the DIOG Section 15.6.1.2. 2.4 2.4.1 (U) FBI LEAD INVESTIGATIVEAUTHORITIES (U) INTRODUCTION G /FOUO) The FBI's primary investigative authority is derived from the authority of the Attorney General as provided in 28 U.S.C. §§ 509, 510, 533 and 534. Within this authority, the Attorney General may appoint officials to detect crimes against the United States and to conduct -uch other investigations regarding official matters under the control of the Department of Justi ce (DOJ) and the Department of State (DOS) as may be directed by the Attorney General _ U.S.C . § 533). The Attorney General has delegated a number of his statutory authorities and ;ranted other authorities to the Director of the FBI (28 C.F.R. § 0.85[a]). Some of these autho rities apply both inside and outside the United States. 2.4.2 (U) TERRORISMAND COUNTERTERRORISMINVEST/GATIONS C) The Attorney General has directed the FBI to exercise Lead Agency responsibility in · ·:estigating all crimes for which DOJ has primary or concurrent jurisdiction and which involve e!"Tori st activities or acts in preparation of terrorist activities within the statutory jurisdiction of e United States. Within the United States, this includes the collection, coordination, analysis, anag ement and dissemination of intelligence and criminal information, as appropriate. If -other federal agency identifies an individual who is engaged in terrorist activities or acts in --eparation of terrorist activities, the other agency is required to promptly notify the FBI. - crrorism, in this context, includes the unlawful use of force and violence against persons or -- perty to intimidate or coerce a government, the civilian population, or any segment thereof, to -.her political or social objectives (28 C.F.R. § 0.85[I]). For a current list of legal authorities elating to the FBI's investigative jurisdiction in terrorism investigations, see the OGC Law _ rary website at http ://home .fbinet.fbi /DO/OGC /Pages /MainLawLibrary.aspx. • FOU O) DOJ guidance designates the FBI as Lead Agency for investigating explosives ,_.,-ers which, under the following protocol, demonstrate a possible nexus to international or ::ie tic terrorism: A) (UI/FOUO) The following factors are strong indicia of a nexus to terrorism and lead-agency jurisdiction is assigned based on these factors alone: 1) (U/IFOUO) an attack on a government building, mass transit, a power plant; or 2) (U/IFOUO) the use of a chemical, biological, radiological, or nuclear agents. 2-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version D.1ted: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 BJ (UIIFOUO) Requires each agency to notify the other immediately when responding to an explosives incident and to share all relevant information that may serve to rule in or out a connection to terrorism; and CJ (U/IFOUO) Creates a process for the FBI/Joint Terrorism Task Force (JTTF) to identify an explosives incident as connected to terrorism when there is reliable evidence supporting that claim and establishes a process for shifting lead-agency jurisdiction to the JTTF until the issue is resolved.(See DOJ Memorandum, dated August 3, 2010, on "Protocol for Assigning Lead Agency Jurisdiction in Explosives Investigations.") 2.4.2.1 (U) "FEDERALCRIMESOFTERRORISM" (U) Pursuant to the delegation in 28 C.F.R. § 0.85(1), the FBI exercises the Attorney General's lead investigative responsibility under 18 U.S.C. § 2332b(f) for all "federal crimes of terrorism" as identified in that statute. Many of these statutes grant the FBI extraterritorial investigative responsibility (See the cited statute for the full particulars concerning elements of the offense, jurisdiction, etc.). Under 18 U.S.C. § 2332b(g)(5), the term "federal crime of terrorism" means an offense that is: (i) calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct; and (ii) violates a federal statute relating to: A) (U) Destruction of aircraft or aircraft facilities (18 U.S. C. § 32); BJ (U) Violence at international airports (applies to offenses occurring outside the United States in certain situations) (18 U.S.C. § 37); CJ (U) Arson within "special maritime and territorial jurisdiction (SMTJ) of the United States" (SMTJ is defined in 18 U.S.C. § 7) (18 U.S.C. § 81); DJ (U) Prohibitions with respect to biological weapons (extraterritorial federal jurisdiction offense committed by or against a United States national) (18 U.S.C. § 175); if E) (U) Possession of biological agents or toxins by restricted persons (18 U.S. C. § 175b); F) (U) Vario/a virus (includes smallpox and other derivatives of the variola major virus) (applies to offenses occurring outside the United States in certain situations) (18 U.S. C. § 175c); G) (U) Prohibited activities regarding chemical weapons (applies to offenses occurring outside the United States in certain situations) (18 U.S.C. § 229) (E.O. 13128 directs any possible violation of this statute be referred to the FBI); HJ (U) Congressional, Cabinet, and Supreme Court assassination, kidnapping and assault (18 U.S.C. § 351[a]-[d}) (18 U.S.C. § 351[g] directs that the FBI shall investigate violations of this statute); I) (U) Prohibited transactions involving nuclear materials (applies to offenses occurring outside the United States in certain situations) (18 U.S.C. § 831); J) (U) Participation in nuclear and weapons of mass destruction threats to the United States (extraterritorial federal jurisdiction) (18 U.S. C. § 832); K) (U) Importation, exportation, shipping, transport, transfer, receipt, or possession of plastic explosives that do not contain a detection agent (18 U.S.C. § 842[m] and [n}); L) (U) Arson or bombing of government property risking or causing death (18 U.S.C. § 844[/} [2] or [3}) (18 U.S.C. § 846[a] grants FBI and the Bureau of Alcohol, Tobacco , Firearms, and Explosives (ATF) concurrent authority to investigate violations of this statute). See Section Version Dated: October 15, 2011 2-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 2.4.2.1.L above regarding DOJ Memorandum dated 08/03/2010 on ATF/FBI Lead Agency Jurisdiction; M) (U) Arson or bombing of property used in or affecting interstate or foreign commerce (18 U.S.C. § 844[i}) (18 U.S.C. § 846[a] grants FBI and ATF concurrent authority to investigate violations of this statute); NJ (U) Killing or attempted killing during an attack on a federal facility with a dangerous weapon (18 U.S.C. § 930[c]); 0) (U) Conspiracy within United States jurisdiction to murder, kidnap, or maim persons at any place outside the United States (18 U.S.C. § 956[a][l]); P) (U) Using a computer for unauthorized access, transmission, or retention of protected information (18 U.S.C. § 1030[a][l]) (18 U.S.C. § 1030[d}[2] grants the FBI ''primary authority" to investigate Section 1030[ a] [ 1] offenses involving espionage, foreign counterintelligence, information protected against unauthorized disclosure for reasons of national defense or foreign relations, or Restricted Data as defined in the Atomic Energy Act, except for offenses affecting United States Secret Service (USSS) duties under 18 U.S.C. § 3056[a]); Q) (U) Knowingly transmitting a program, information, code, or command and thereby intentionally causing damage, without authorization, to a protected computer (18 U.S. C. § 1030[a][5][A}[i}); R) (U) Killing or attempted killing of officers or employees of the United States, including any member of the uniformed services (18 U.S.C. § 1114); SJ (U) Murder or manslaughter of foreign officials, official guests, or internationally protected persons (applies to offenses occurring outside the United States in certain situations) (18 U.S. C. § 1116) (Attorney General may request military assistance in the course of enforcement of this section); T) (U) Hostage taking (applies to offenses occurring outside the United States in certain situations) (18 U.S.C. § 1203); U) (U) Willfully injuring or committing any depredation against government property or contracts (18 U.S.C. § 1361); VJ(U) Destruction of communication lines, stations, or systems (18 U.S.C. § 1362); W) (U) Destruction or injury to buildings or property within special maritime and territorial jurisdiction of the United States (18 U.S. C. § 1363); X) (U) Destruction of $100, 000 or more of an "energy facility" property as defined in the statute § 1366); (18 u.s.c. }; (U) Presidential and Presidential staff assassination, kidnapping, and assault (18 U.S. C. § 1751[a], [b], [c], or [d]) (extraterritorial jurisdiction) (Per 18 U.S.C. § 1751[i], 1751 violations must be investigated by the FBI; FBI may request assistance from any federal [including military], state, or local agency notwithstanding any statute, rule, or regulation to the contrary); Z) (U) Terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air (includes a school bus, charter, or sightseeing transportation; or any means of transport on land, water, or through the air) (18 § 1992); u.s.c. AA) (U) Destruction of national defense materials, premises, or utilities (18 U.S. C. § 2155); 2-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 BB) (U) Production of defective national defense materials, premises, or utilities (18 U.S. C. § 2156); CC) (U) Violence against maritime navigation (18 U.S.C. § 2280); DD) (U) Violence against maritime fixed platforms (located on the continental shelf of the United States or located internationally in certain situations) (18 U.S.C. § 2281); EE) (U) Certain homicides and other violence against United States nationals occurring outside of the United States (18 U.S.C. § 2332); FF) (U) Use of weapons of mass destruction (WMD) (against"a national of the United States while outside the United States; against certain persons or property within the United States; or by a national of the United States outside the United States) (18 U.S.C. § 2332a) (WMD defined in 18 U.S.C. § 2332a[c}[2]); GG) (U) Acts of terrorism transcending national boundaries (includes murder, kidnapping, and other prohibited acts occurring inside and outside the United States under specified circumstances - including that the victim is a member of a uniform service; includes offenses committed in the United States territorial sea and airspace above and seabed below; includes offenses committed in special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. § 7) (18 U.S.C. § 2332b); HH) (U) Bombings of places of public use, government facilities, public transportation systems and infrastructure facilities (applies to offenses occurring inside or outside the United States in certain situations; does not apply to activities of armed forces during an armed conflict) (18 U.S.C. § 2332j); JJ) (U) Missile systems designed to destroy aircraft (applies to offenses occurring outside the United States in certain situations) (18 U.S.C. § 2332g); JJ) (U) Radiological dispersal devices (applies to offenses occurring outside the United States in certain situations) (18 U.S. C. § 2332h); KK) (U) Harboring or concealing terrorists (18 U.S.C. § 2339); LL) (U) Providing material support or resources to terrorists (18 U.S.C. § 2339A); MM) (U) Providing material support or resources to designated foreign terrorist organizations (extraterritorial federal jurisdiction) (18 U.S.C. § 2339B) ("The Attorney General shall conduct any investigation of a possible violation of this section , or of any license, order, or regulation issued pursuant to this section." 18 U.S.C. § 2339B[e][l]); NN) (U) Prohibitions against the financing of terrorism (applies to offenses occurring outside the United States in certain situations including on board a vessel flying the flag of the United States or an aircraft registered under the laws of the United States) (18 U.S.C. § 2339C) (Memorandum of Agreement between the Attorney General and the Secretary of Homeland Security , dated May 13, 2005: FBI leads all terrorist financing investigations and operations); 00) (U) Relating to military-type training from a foreign terrorist organization (extraterritorial jurisdiction) (18 U.S. C. § 2339D); PP) (U) Torture applies only to torture committed outside the United States in certain situations; torture is defined in 18 U.S.C. § 2340 (18 U.S.C. § 2340A); QQ) (U) Prohibitions governing atomic weapons (applies to offenses occurring outside the United States in certain situations) (42 U.S. C. § 2122) (FBI shall investigate alleged or suspected violations per 42 U.S. C. § 2271 [bl); Vers10n Dated: October 15, 2011 2-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 RR) (U) Sabotage of nuclear facilities or fuel (42 U.S.C. § 2284) (FBI shall investigate alleged or suspected violations per 42 U.S. C. § 2271 [bl); SS) (U) Aircraft piracy (applies to offenses occurring outside the United States in certain situations) (49 U.S.C. § 46502) (FBI shall investigate per 28 U.S.C. § 538); TT) (U) Assault on a flight crew with a dangerous weapon (applies to offenses occurring in the "special aircraft jurisdiction of the United States" as defined in 49 U.S.C. § 46501[2}); (second sentence of 49 U.S.C. § 46504) (FBI shall investigate per 28 U.S.C. § 538); UU) (U) Placement of an explosive or incendiary device on an aircraft (49 U.S. C. § 46505[b}[3}) (FBI shall investigate per 28 U.S.C. § 538); VV) (U) Endangerment of human life on aircraft by means of weapons (49 U.S.C. § 46505[c]) (FBI shall investigate per 28 U.S.C. § 538); WW) (U) Application of certain criminal laws to acts on aircraft (if homicide or attempted homicide is involved) (applies to offenses occurring in the "special aircraft jurisdiction of the United States" as defined in 18 U.S.C. § 46501[2]); (49 U.S.C. § 46506) (FBI shall investigate per 28 U.S.C. § 538); XX) (U) Damage or destruction of interstate gas or hazardous liquid pipeline facility (49 U.S.C. § 60123[b]); and YY,) (U) Section lOlOA of the Controlled Substances Import and Export Act (relating to narco-terrorism). 2.4.2.2 (U) ADDITIONALOFFENSESNOT DEFINEDAS "FEDERALCRIMESOF TERRORISM" (U) Title 18 U.S.C. § 2332b(f) expressly grants the Attorney General primary investigative authority for additional offenses not defined as "Federal Crimes of Terrorism." These offenses are: A) (U) Congressional, Cabinet, and Supreme Court assaults (18 U.S.C. § 35l[e]) (18 U.S.C. § 35l[g]) directs that the FBI investigate violations of this statute); BJ (U) Using mail, telephone, telegraph, or other instrument of interstate or foreign commerce to threaten to kill, injure, or intimidate any individual, or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or explosive (18 U.S.C. § 844[e}); (18 U.S.C. § 846[a} grants FBI and ATF concurrent authority to investigate violations of this statute); CJ (U) Damages or destroys by means of fire or explosive any building, vehicle, or other personal or real property, possessed, owned, or leased to the United States or any agency thereof, or any institution receiving federal financial assistance (18 U.S. C. § 844[1}[ 1]) (18 U.S.C. § 846[a} grants FBI and ATF concurrent authority to investigate violations of this statute). See Section 2.4.2.1.L above regarding DOJ Memorandum dated 08/03 /2010 on ATFIFBI Lead Agency Jurisdiction; DJ (U) Conspiracy within United States jurisdiction to damage or destroy property in a foreign country and belonging to a foreign country, or to any railroad, canal, bridge, airport, airfield, or other public utility, public conveyance, or public structure, or any religious, educational, or cultural property so situated (18 U.S.C. § 956[b]); E) (U) Destruction of $5, 000 or more of an "energy facility" property as defined in 18 U.S. C. § 1366(c) (18 U.S.C. § 1366[b]); and 2-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers10•1 Dated October lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 F) (U) Willful trespass upon, injury to, destruction of, or interference with fortifications, harbor defenses, or defensive sea areas (18 U.S. C. § 2152). (U) Nothing in this section of the DIOG may be construed to interfere with the USSS under 18 U.S.C. § 3056. 2.4.2.3 (U//FOUO) NSPD-46/HSPD-15, "U.S. POLICY AND STRATEGY IN THE WAR ON TERROR" (U//FOUO) Annex II (Consolidation and Updating of Outdated Presidential Counterterrorism Documents), dated January 10, 2007, to the classified National Security Presidential Directive (NSPD) 46/Homeland Security Presidential Directive (HSPD) 15, dated March 6, 2006, establishes FBI lead responsibilities, as well as those of other federal entities, in the "War on Terror." Annex II directs departments or agencies with lead or primary responsibility under the Annex "to coordinate - through the appropriate mechanism - their discharge of such responsibility with other relevant departments and agencies, except where indicated otherwise in the Annex." (U//FOUO) Areas addressed in Annex II include domestic incident management, continuity of operations /continuity of government, air piracy and hijacking, National Special Security Events (NSSE), maritime domain, WMD interdiction, critical infrastructure protection, and disrupting terrorists at home and abroad. Both NSPD-46/HSPD- l 5 and Annex II thereto are classified. 2.4.3 (U) COUNTERINTELLIGENCE AND ESPIONAGE INVEST/GA TIONS (U//FOUO) A representative list of federal statutes applicable to counterintelligence and espionage investigations appears below. For additional information, refer to the classified Counterintelligence Division (CD) Policy Implementation Guide (PG) and the current list of espionage and counterintelligence authorities. 2.4.3.1 (U) ESPIONAGE INVESTIGATIONS OF PERSONS IN UNITED STATES DIPLOMATIC MISSIONS ABROAD (U) Section 603 of the Intelligence Authorization Act of 1990 (P.L. 101-193) states that, subject to the authority of the Attorney General, "the FBI shall supervise the conduct of all investigations of violations of the espionage laws of the United States by persons employed by or assigned to United States diplomatic missions abroad. All departments and agencies shall provide appropriate assistance to the FBI in the conduct of such investigations." Consult the Attorney General's extraterritorial guidelines and other applicable policy or agreements. 2.4.3.2 (U) INVESTIGATIONS OF UNAUTHORIZED DISCLOSURE OF CLASSIFIED INFORMATION TO A FOREIGN POWER OR AGENT OF A FOREIGN POWER (U) The National Security Act of 1947, as amended, establishes procedures for the coordination of counterintelligence activities (50 U.S.C. § 402a). Part of that statute requires that, absent extraordinary circumstances as approved by the President in writing on a case-bycase basis, the head of each executive branch department or agency must ensure that the FBI is "advised immediately of any information, regardless of its origin, which indicates that Version Dated: October 15, 2011 2-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 classified information is being, or may have been, disclosed in an unauthorized manner to a foreign power or an agent of a foreign power." 2.4.4 (U) CRIMINAL INVEST/GA TIONS (U//FOUO) In addition to the statutes listed above and below, refer to the appropriate program/sub-program Criminal Investigative Division (CID) PG for additional criminal jurisdiction information. 2.4.4.1.1 (U) INVESTIGATIONS OF AIRCRAFT PRIVACY AND RELATED VIOLATIONS (U) The FBI shall investigate any violation of 49 U.S.C. § 46314 (Entering aircraft or airport areas in violation of security requirements) or chapter 465 (Special aircraft jurisdiction of the United States) of Title 49, United States Code; (28 U.S.C. § 538) 2.4.4.1.2 (U) VIOLENT CRIMES AGAINST FOREIGN TRAVELERS (U) The Attorney General and Director of the FBI shall assist state and local authorities in investigating and prosecuting a felony crime of violence in violation of the law of any State in which the victim appears to have been selected because he or she is a traveler from a foreign nation; (28 U.S.C. § 540A[b]) 2.4.4.1.3 (U) FELONIOUS KILLINGS OF STATE AND LOCAL LAW ENFORCEMENT OFFICERS (U) The FBI shall investigate any violation of 28 U.S.C. § 540; and 2.4.4.1.4 (U) INVESTIGATIONS OF SERIAL KILLINGS (U) The FBI shall investigate any violation of 28 U.S.C. § 5408. 2.4.5 (U) AUTHORITY OF AN FBI SPECIAL AGENT (U) An FBI Special Agent has the authority to: A) (U) Investigate violations of the laws, including the criminal drug laws, of the United States (21 US.C. § 871; 28 US.C. §§ 533, 534 and 535; 28 C.F.R. § 0.85); B) (U) Collect evidence in investigations in which the United States is or may be a party in interest (28 C.F.R. § 0.85 [a]) as redelegated through exercise of the authority contained in 28 C.F.R. § 0.138 to direct personnel in the FBI; C) (U) Make arrests (18 US.C. §§ 3052 and 3062); D) (U) Serve and execute arrest warrants and seize property under warrant; issue and/or serve administrative subpoenas; serve subpoenas issued by other proper authority; and make civil investigative demands (18 US.C. §§ 3052, 3107 ; 21 US.C. § 876; 15 US.C. § 1312); E) (U) Carry firearms (18 U.S.C. § 3052); F) (U) 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 (5 U.S.C. § 303); 2-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated· October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 G) (U) Seiz e property subje ct to seizure under the criminal and civil forf eitur e laws of the United States (e.g., 18 U.S.C. §§ 981 and 982); and HJ (U) Perform other duties imposed by law. (U) Note: For policy regarding Agent's authority to intervene in non-federal crimes or make nonfederal arrests, see Section 19.3.3. 2.5 (U) STATUS AS INTERNAL GUIDANCE (U) The AGG-Dom, this DIOG, and the various operational division PGs are set forth solely for the purpose of internal DOJ and FBI guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable by law by any party in any matter, civil or criminal, nor do they place any limitation on otherwise lawful investigative and litigative prerogatives of the DOJ and the FBI. (AGG-Dom , Part I.D.2.) 2.6 2.6.1 (U) DEPARTURE FROM THE AGG-DOM (AGG-DOM I.D.3) (U) DEFINITION (U//FOUO) A "departure" from the AGG-Dom is a deliberate deviation from a known requirement of the AGG-Dom. The word "deliberate" means the employee was aware of the AGG-Dom requirement and affirmatively chose to depart from it for operational reasons before the activity took place. Departures from the AGG-Dom may only be made in accordance with the guidance provided in this section. 2.6.2 (U) DEPARTURE FROM THE AGG-DOM IN ADVANCE (U//FOUO) A departure from the AGG-Dom must be approved by the Director of the FBI , by the Deputy Director of the FBI, or by an Executive Assistant Director (EAD) designated by the Director. The Director of the FBI has designated the EAD National Security Branch (NSB) and the EAD Criminal Cyber Response and Services Branch (CCRSB) to grant departures from the AGG-Dom. Notice of the departure must be provided by Electronic Communication (EC) to the General Counsel (GC) using file number 333-HQ-Cl629406. The Office of the General Counsel (OGC) must provide timely written notice of departures from the AGG-Dom to either the DOJ Criminal Division or National Security Division (NSD) , whichever is appropriate , or to both , and the Criminal Division or NSD must notify the Attorney General and the Deputy Attorney General. Notwithstanding this paragraph , all activities in all circumstances must be carried out in a manner consistent with the Constitution and laws of the United States . (AGG-Dom , Part I.D.3.) 2.6.3 (U) EMERGENCY DEPARTURES FROM THE AGG-DOM (U//FOUO) If a departure from the AGG-Dom is necessary without prior approval because of the immediacy or gravity of a threat to the safety of persons or property or to the national security, an FBI employee may, at his/her discretion, depart from the requirements of the AGO-Dom when the designated approving authority for the investigative activity cannot be contacted through reasonable means. The Director, the Deputy Director , or a designated EAD , and the GC must be notified by EC of the departure as soon thereafter as practicable , but not more than 5 business days after the departure using file number 333-HQ-Cl629406. The OGC must provide Ver'>ion Dated October 15, 2011 2-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 timely written notice of departures from the AGG-Dom to either the DOJ Criminal Division or NSD, whichever is appropriate, or to both of them, and the Criminal Division or NSD must notify the Attorney General and the Deputy Attorney General. Notwithstanding this paragraph, all activities in all circumstances must be carried out in a manner consistent with the Constitution and laws of the United States. (AGG-Dom, Part l.D.3.) 2.6.4 (U) RECORDS OFDEPARTURESFROMTHEAGG-DOM (U//FOUO) The OGC is responsible for maintaining records of all requests and approvals or denials of departures from the AGG-Dom. Records will be maintained in file number 333-HQC 1629406. 2.7 2. 7.1 (U) DEPARTURESFROMTHE DIOG (U) DEFINITION (U//FOUO) A "departure" from the DIOG is a deliberate deviation from a known requirement of the DIOG. The word "deliberate" means the employee was aware of the DIOG requirement and affirmatively chose to depart from it for operational reasons before the activity took place. Departures from the DIOG may only be made in accordance with the guidance provided in this section. 2.7.2 (U) DEPARTUREFROM THEDIOG (U//FOUO) A request for a departure from the DIOG must be submitted with an EC using file number 333-HQ-Cl629406 and approved by the appropriate operational program Assistant Director (AD) with notice to the GC. Notwithstanding this paragraph, all activities in all circumstances must be carried out in a manner consistent with the Constitution and laws of the United States. (U//F OUO) OGC will review all departures from the DIOG. If OGC determines the departure from the DIOG also involves a departure from the AGG-Dom, OGC must provide timely written notice to DOJ in accordance with the provisions of Section l.D.3 of the AGG-Dom. 2.7.3 (U) EMERGENCYDEPARTURESFROM THEDJOG ,U /FOUO) FBI employees may conduct the requirements of the DIOG, including when the designated approving authority ontacted through reasonable means and factors is present: or engage in investigative activity that deviates from utilizing investigative methods, without prior approval, for the investigative activity (if any) cannot be in the judgment of the employee one of the following A) (UI/FOUO) an immediate or grave threat to the safety of persons or property exists, or B) (UI/FOUO) an immediate or grave threat to the national security exists, or 2-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY v~-sion J,·ted: (let.a) 'r 1'3 :?011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 CJ (UIIFOUOJ a substantial likelihood exists that a delay will result in the loss of a significant . . . . I mvestzgatzve opportunity. (U//FOUO) The appropriate operational program AD and the GC must be notified of the emergency departure by EC using file number 333-HQ-C1629406 as soon as practicable, but no later than 5 business days after engaging in the activity or utilizing the investigative method. This documentation must also be filed in the applicable investigative file in which the activity or method was taken. OGC will review all departures from the DIOG . If OGC determines the departure from the DIOG also involves a departure from the AGG-Dom, OGC must provide timely written notice to DOJ in accordance with the provisions of Section I.D.3 of the AGGDom. Notwithstanding this paragraph, all activities in all circumstances must be carried out in a manner consistent with the Constitution and laws of the United States. 2.7.4 (U) RECORDS OF DEPARTURES FROM THE DJOG (U//FOUO) The OGC is responsible for maintaining records of all requests and approvals or denials of departures from the DIOG. Records will be maintained in file number 333-HQCl 629406. 2.8 (U) DISCOVERYOF NON-COMPLIANCEWITH DIOG REQUIREMENTSAFTER-THEFACT 2.8.1 (U) SUBSTANTIAL NON-COMPLIANCE 2.8.1.1 (U) SUBSTANTIAL WITH THE DJOG NON-COMPLIANCE (U//FOUO) "Substantial non-compliance" means non-compliance that is of significance to the matter and is more than a minor deviation from a DIOG requirement. 2 Non-compliance that relates solely to administrative or peripheral requirements is not substantial. Substantial noncompliance specifically includes the following: AJ (UIIFOUOJ the unauthorized use of an investigative method; BJ (U!IFOUOJ the failure to obtain required supervisory approval;3 and CJ (UI/FOUOJ non-compliance that has a potential adverse effect upon a member of the public's individual rights or liberties. (U//FOUO) Example A: During an Assessment, ASAC approval was not obtained before using the Mobile Surveillance Team (MST) and the Bureau airplane to conduct surveillance. Because the approval was not obtained in advance nor was it done pursuant to an emergency 1 (U//FOUO) This is not a permissible factor for departing from the AGG-Dom. Thus, this factor may only provide a basis for a departure from the DIOGthat does not require a departure from the AGG-Dom. 2 (U//FOUO) Departures from the AGG-Dom and the DIOG do not fall within the definition of"noncompliance" as used in this section. Departures are to be handled as described Sections 2.6 and 2. 7 and should not be reported as "non-compliance" matters. 3 (U/ /FOUO) If supervisory approval was obtained pursuant to Section 2. 7.3 (Emergency Departure from the DIOG),the failure to document this approval within 5 business days is a reportable "substantial noncompliance" matter. Version Dated: October 15, 2011 2-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 situation as described in 2.7.3, this would be "substantial" non-compliance with DIOG sections 18.5.8.3.3 and 18.5.8.3.4 and must be reported to OIC as set forth in 2.8.2 below. (U//FOUO) Example B: A new SSA arrives in a squad and discovers that his predecessor did not conduct file reviews in several of the squad's Predicated Investigations for several months. This is "substantial non-compliance" and must be reported. 2.8.1.2 (U) OTHER NON-COMPLIANCE (U//FOUO) Non-compliance with the DIOG that is not "substantial" may be reported, but it is not mandatory to do so. If there is uncertainty regarding whether a particular matter is substantial or not, the matter should be reported. Nevertheless, whenever non-compliance is discovered (whether reported or not), appropriate remedial action must be taken by the relevant employee(s) to correct the non-compliance, including implementing any preventative measures that would help eliminate possible future non-compliance. (U//FOUO) Example: An SSA discovers that she conducted a file review 20 days late. This relates to an administrative requirement and, without more, is not "substantial" noncompliance; this does not have to be reported to OIC. The SSA should, however, take appropriate preventative measures to avoid recurrence. 2.8.2 (U) DOCUMENTATION OF SUBSTANTIAL NON-COMPLIANCE (U//FOUO) Substantial non-compliance with the DIOG must be reported by EC or subsequent form. The EC must include the following information: A) (U/IFOUO) The relevant DIOG provision(s) involved; BJ (UIIFOUO) Description of the facts and circumstances (including dates) of the substantial non-compliance; CJ (UIIFOUO) The date the substantial non-compliance was discovered ; DJ (U/IFOUO) Circumstances leading to the discovery of the substantial non-complian ce; E) (U//FOUO) If the substantial non-compliance was the result of the failure to obtain appropriate supervisory approval (e.g., failure to comply with the requirements of section 2. 7.4) in the context of an emergency departure from the DIOG, a statement as to whether that official , or the current official in the appropriate supervisory position , would have approv ed the action if a timely request had been made based on the facts and circumstances then known ; F) (UI/FOUO) Known adverse consequences, compliance; and if any, attributable to the substantial non- G) (UI/FOUO) Corrective or remedial action(s) taken or planned to be taken to mitigate the substantial non-compliance, as well as to help prevent such occurrences in the future. lJ /F OUO) Example: An ASAC discovers that a Preliminary Investigation (PI) was extended . ·ithout obtaining the proper approvals. The failure to obtain appropriate supervisory approval to extend the Preliminary Investigation must be reported, and the report must address all of the :e\' en areas in A-G listed above. 2-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dated: October 15,2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §2 2.8.3 (U) REPORTINGAUTHORITIES (U//FOUO) If the substantial non-compliance occurred in a field office, the EC must be addressed to the ADIC/SAC. If the substantial non-compliance occurred at FBI Headqu arter:(FBIHQ), the EC must be addressed to the employee's Assistant Director. A copy of the EC must be provided to the Office of Integrity and Compliance (OIC) and to the Office of the General Counsel (OGC) using file number 3190-HQ-A1561245-0IC. A copy of the EC shoulc.. also be sent to the investigative file in which the incident occurred. In addition , if the ADIC S_--\ or AD assesses that the non-compliance appears to reflect intentional or willful miscondu ct, it must be reported separately by EC to the Internal Investigations Section of the Inspecti on Division . 2.8.4 (U) ROLE OF 0/C AND OGC (U//FOUO) OGC will review all reports of substantial non-compliance to determine whether ar _ further action is required in the particular matter. OIC will analyze substantial non-compli ance reports to determine whether any trends exist in the data and will develop strategies to reduce th~ occurrences of substantial non-compliance. Based upon OIC's analysis of these reports , ifOI C discovers a systemic problem of non-compliance with the AGO-Dom or DIOG involvin g intelligence activities , either division or FBI wide , OIC must notify OGC/NSLB of this system iL problem . (U//FOUO) Example A: An IA discovers that a mail cover was used in an Assessment. Because mail covers are not permitted to be used in Assessments, this must be reported as a "substantial " non-compliance with the DIOG. (U//FOUO) Example B: A supervisor determines that a Type 1 & 2 Assessment was opened based solely on the exercise of First Amendment rights. While no supervisory approval was required to open the Type 1 & 2 Assessment , this must be reported as "substantial " noncompliance because opening an Assessment based solely on First Amendment activity affects an individual 's rights and liberties. 2.8.5 (U) POTENTIALJOB MATTERSINVOLVINGTHEREPORTSOFSUBSTANTIAL NON-COMPLIANCE (U//FOUO) If the substantial non-compliance is also a potential IOB matter , the matter must be reported in accordance with the requirements and procedures for reporting potential IOB matters to OGC/NSLB. See Corporate Policy Directive O188D: Guidance on Intelligence Oversight Board Matters (See 0188D); the Policy Implementation Guide 0 188PG; and see DIOG Section 4. No additional reporting of the incident needs to be made to OIC under this section. 2.8.6 (U) REPORTINGNON-COMPLIANCEWITH POLICY IMPLEMENTATIONGUIDES (U//FOUO) Substantial non-compliance with DIOG-related Policy/Program Guides must be reported by EC or subsequent form to the SAC/ ADIC, with a copy to the pertinent Headquarters Program Manager , and to the OIC and OGC using file number 3190-HQ-A1561245-0IC. Version Dated October 5, J.O11 2-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 2.8.7 §2 (U) REPORTINGNON-COMPLIANCEWITH OTHERFBI POLICIESAND PROCEDURES{OUTSIDE THEDJOG) (U /FOUO) Nothing in this section is intended to alter , limit , or restrict existing policies that require non-compliance to be reported in areas not covered by the DIOG. Employees remain responsible to report those other matters . Additional information can be found on the Office of Integrity and Compliance's webpage. 2. 9 (U) OTHER FBI ACTIVITIES NOT LIMITED BY AGG-DOM (U) The AGG-Dom apply to FBI domestic investigative activities and do not limit other aut horized activities of the FBI. The authority for such other activities may be derived from the authority of the Attorney General as provided in federal statutes, guidelines, or Executive Orders. The scope and approval of these other authorized activities are addressed in the policies that govern the activity and these policies must be relied on when engaging in such activities. Examples of authorized FBI activities not governed by the AGG-Dom include, but are not limited to, the FBI's responsibilities to conduct background checks and inquiries concerning applicants and employees under federal personnel security programs ( e.g., background investigations) , FBI physical building security issues, Office of Professional Responsibility /personnel issues , certain administrative claims /civil actions, the FBI's ma intenance and operation of national criminal records systems and preparation of national crime statistics , and the forensic assistance and administration functions of the FBI Laboratory. I AGG-Dom , Part I.D.4 .) I U) FBI employees may incidentally obtain information relating to matters outside of the FBI's primary investigative responsibility . For example , information relating to violations of state or local law or foreign law may be incidentally obtained in the course of investigating federal crimes or threats to the national security or in collecting foreign intelligence. Neither the AGGDom nor the DIOG bar the acquisition of such information in the course of authorized investigative activities , the retention of such information , or its dissemination as appropriate to the responsible authorities in other jurisdictions . (See Section 14; AGG-Dom, Part II and Part VI.B) 2.10 (U) USE OF CLASSIFIED INVESTIGATIVE TECHNOLOGIES , U) Inappropriate use of classified investigative technologies may risk the compromise of such technologies . Hence, in an investigation relating to activities in violation of federal criminal law that does not concern a threat to the national security or foreign intelligence, the use of such technologies must be in conformity with the Procedures for the Use of Classified Investigative Technologies in Criminal Cases (AGG-Dom , Part V.B.2) , Operational Technology Division I OTD) Domestic Technical Assistance (DTA) Policy Implementation Guide (PG), and any other FBI policies concerning such technology use. 2.11 (U) APPLICATION OF AGG-DoM AND DIOG ·u //FOUO) The AGG-Dom and DIOG apply to all FBI domestic investigations and operations conducted by an "FBI employee " or an FBI confidential human source (CHS) , when operating 2-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: fktober 15, 2011 §2 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide pursuant to the tasking or instructions of an FBI employee. The term "FBI employee" includes, but is not limited to, an operational/administrative professional support person, intelligence analyst, special agent, task force officer (TFO), task force member (TFM), task force participant (TFP), detailee, and FBI contractor. Both an "FBI employee" and a CHS, when operating pursuant to the tasking or instructions of an FBI employee, are bound by the AGG-Dom and DIOG. In the DIOG, "FBI employee" includes all personnel descriptions, if not otherwise prohibited by law or policy. For example, if the DIOG states that the "FBI employee" is responsible for a particular investigative activity, the supervisor has the flexibility to assign that responsibility to any person bound by the AGG-Dom and DIOG (e.g., agent, intelligence analyst, task force officer), if not otherwise prohibited by law or policy. (U//FOUO) TFOs, TFMs, TFPs, detailees, and FBI contractors are defined as "FBI employees" for purposes of application of the AGG-Dom and DIOG. However, for overt representational purposes, TFOs, TFMs, TFPs, detailees and FBI contractors should identify themselves as employees of their parent agency and, if appropriate and necessary, affiliated with a particular FBI investigative entity, such as the JTTF, etc. A CHS is likewise bound by the AGG-Dom, DIOG, AGG-CHS, and other applicable CHS policies when operating pursuant to the tasking or instructions of an FBI employee; however, the FBI CHS is not an employee of the FBI. (U//FOUO) TFOs, TFMs, TFPs, detailees, and FBI contractors are defined as "FBI employees" only for purposes of the AGG-Dom and DIOG. This inclusive definition does not define federal employment for purposes of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, and 2671 et seq.; the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq.; the Intergovernmental Personnel Act, 5 U.S.C. § 3374 et seq, or any other law. (U//FOUO) FBIHQ division PGs may not contradict, alter or otherwise modify the standards established in the DIOG. Vers on 0Jtec October 1, 2011 2-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 3 3 .1 §3 (U) COREVALUES,ROLES,AND RESPONSIBILITIES (U) THE FBl's CORE VALUES (U) The FBI's core values guide and further our mission and help us achieve our many goals. The values do not exhaust the many goals we wish to achieve, but they capsulate the goals as well as can be done in a few words. The FBI's core values must be fully understood, practiced, shared, vigorously defended, and preserved. The values are: A) (U) Rigorous obedience to the Constitution of the United States B) (U) Respect for the dignity of all those we protect C) (U) Compassion D) (U) Fairness E) (U) Uncompromising personal integrity and institutional integrity F) (U) Accountability by accepting responsibility for our actions and decisions and their consequences G) (U) Leadership, by example, both personal and professional (U) By observing these core values, we achieve a high level of excellence in performing the FBI's national security and criminal investigative functions as well as the trust of the American people. Our individual and institutional rigorous obedience to constitutional principles and guarantees is more important than the outcome of any single interview, search for evidence, or investigation. Respect for the dignity of all reminds us to wield law enforcement powers with restraint and to avoid placing our self interest above that of those we serve. Fairness and compassion ensure that we treat everyone with the highest regard for constitutional, civil, and human rights. Personal and institutional integrity reinforce each other and are owed to our Nation in exchange for the sacred trust and great authority conferred upon us. (U) We who enforce the law must not merely obey it. We have an obligation to set a moral example that those whom we protect can follow. Because the FBI's success in accomplishing its mission is directly related to the support and cooperation of those we protect, these core values are the fiber that holds together the vitality of our institution. 3.1.1 (U) COMPLIANCE (U) All FBI personnel must fully comply with all laws, rules, and regulations governing FBI investigations, operations, programs and activities, including those set forth in the AGG-Dom. We cannot, do not, and will not countenance disregard for the law for the sake of expediency in anything we do. The FBI expects its personnel to ascertain the laws and regulations that govern the activities in which they engage and to acquire sufficient knowledge of those laws, rules, and regulations to understand their requirements, and to conform their professional and personal conduct accordingly. Under no circumstances will expediency justify disregard for the law. FBI policy must be consistent with Constitutional, legal, and regulatory requirements. Additionally, 3-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 the FBI must provide sufficient training to affected personnel and ensure that appropriate oversight monitoring mechanisms are in place. (U//FOUO) In general, the FBI requires employees to report known or suspected failures to adhere to the Jaw, rules or regulations by themselves or other employees, to any supervisor in the employees' chain of command; any Division Compliance Officer; any Office of the General Counsel (OGC) Attorney; any Inspection Division personnel; any FBI Office of Integrity and Compliance (OIC) staff; or any person designated to receive disclosures pursuant to the FBI Whistleblower Protection Regulation (28 Code of Federal Regulations § 2 7 .1), including the Department of Justice (DOJ) Inspector General. For specific requirements and procedures for reporting "departures" and "non-compliance" with the AGG-Dom on the DIOG, see DIOG Section 2. 3.2 (U) INVESTIGATIVEAUTHORITY,ROLESAND RESPONSIBILITYOF THE DIRECTOR'SOFFICE 3.2.1 (U) DIRECTOR'sAUTHORITY, ROLES AND RESPONSIBILITY (U//FOUO) The Director's authority is derived from a number of statutory and regulatory sources. For example, Sections 531 through 540a of Title 28, United States Code (U.S.C.) , provide for the appointment of the Director and enumerate some of his powers. More importantly , with regard to promulgation of the DIOG, Section 301 of Title 5, U.S.C., authorizes the head of an Executive department to "prescribe regulations for the government of his department, the conduct of its employees , the distribution and performance of its business , and the custody , use , and preservation of its records , papers, and property." The Attorney General, as head of the DOJ , has delegated the authority in Section 301 to the Director in a variety of orders and regulations. Foremost among these delegations are Subpart P and Section 0.137 of Title 28, Code of Federal Regulations (C.F.R .). This DIOG is promulgated under the authority thus delegated. (U//FOUO) The Director's role and responsibilities under the AGG-Dom and DIOG, include, among others , the approval or denial of departures from the AGG-Dom , Undisclosed Participation (UDP) (see DIOG Section 16) and Sensitive Operations Review Committee (SORC) matters (see DIOG Section 10). 3.2.2 (U) DEPUTY DIRECTOR'SAUTHORITY, ROLES AND RESPONSIBILITY (U//FOUO) The Deputy Director is the proponent of the DIOG, and in that position has oversight regarding compliance with the DIOG and subordinate implementing procedural directives and divisional specific PGs. The Deputy Director is also responsible for the development and the delivery of necessary training and the execution of the monitoring and auditing processes. (U//FOUO) The Deputy Director works through the Corporate Policy Office (CPO) to ensure the following: A) (U//FOUO) The DIOG is updated as necessary to comply with changes in the law, rules, or regulations; Version Dated. October 15, 201!. 3-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 B) (U//FOUO) The DIOG is reviewed every three years after the effective date of the 2011 revision, and revised as appropriate. This mandatory review schedule, however, does not restrict the CPO, which is responsible for all corporate policy matters, from working with FBI Headquarters (FBIHQ) divisions and field offices in the meantime to make policy revisions to the DIOG and the PGs whenever necessary and appropriate during the three year period. The CPO may also make technical or non-substantive language or formatting changes to the DIOG, as necessary, provided those changes clarify the meaning without altering the substance of the DIOG; C) (U//FOUO) Existing and proposed investigative and administrative policies and PGs comply with the standards established in the AGG-Dom and DIOG. On behalf of the Deputy Director, the CPO has the authority, following coordination with the OIC and OGC, to modify or remove any provision of existing or proposed investigative or administrative policies or PGs determined to violate, contradict, or otherwise modify the intent or purpose of any provision or standard established in the AGG-Dom or DIOG; and D) (U//FOUO) If the CPO makes any changes to the DIOG or other policy pursuant to DIOG Sections 3.2.2.B and/or 3.2.2.C above, the CPO will immediately advise by e-mail all FBIHQ and field office Division Policy Officers (DPO) of such changes and all DPOs must further advise their respective FBI employees of such changes. The electronic version of the DIOG maintained in the CPO's Policy and Guidance Library is the official current policy of the FBI. 3 .3 (U) SPECIAL AGENT /INTELLIGENCE ANALYST/TASK (TFO)/TASK FORCE MEMBER (TFM)/TASK FORCE OFFICER FORCE PARTICIPANT (TFP)/FBI CONTRACTOR/OTHERS - ROLES AND RESPONSIBILITIES 3.3.1 (U) ROLES AND RESPONSIBILITIES (U//FOUO) Special Agents, analysts, TFO, TFM, TFP, FBI contractors and others bound by the AGG-Dom and DIOG must: 3.3.1.1 (U) TRAINING (U//FOUO) Obtain training on the DIOG standards relevant to his/her position and perform activities consistent with those standards; 3.3.1.2 (U) INVESTIGATIVEACTIVITY (U//FOUO) Ensure all investigative activity complies with the Constitution, Federal law, executive orders, Presidential Directives , AGG-Dom, other Attorney General Guidelines (AGG), Treaties, Memoranda of Agreement/Understanding, the DIOG , and any other applicable legal and policy requirements (if an agent, analyst, TFO, or other individual is unsure of the legality of any action, he/she must consult with his/her supervisor , the Chief Division Counsel (CDC) or OGC); 3.3.1.3 (U) PRIVACYAND CIVILLIBERTIES (U//FOUO) Ensure that civil liberties and privacy are protected throughout the Assessment or investigative process; 3-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver51011Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 3 3.3.1.4 (U) PROTECTRIGHTS (U//F OUO) Conduct no investigative activity based solely on the exercise of First Amendment activities (i.e., the free exercise of speech, religion, assembly, press or petition) or on the race , ethnicity, national origin or religion of the subject (See DIOG Section 4); 3.3.1.5 (U) COMPLIANCE (U//FOUO) Ensure compliance with the DIOG, including standards for opening, conducting, and closing an investigative activity; collection activity; or use of an investigative method, as provided in the DIOG ; 3.3.1.6 (U) REPORT NON-COMPLIANCE (U//FOUO) Comply with the law, rules, or regulations, and report any non-compliance concern to the proper authority. For specific requirements and procedures for reporting departures and non-compliance with the AGG-Dom and the DIOG, see DIOG Sections 2.6 2.8; 3.3.1.7 (U) ASSIST VICTIMS (U//FOUO) Identify victims who have suffered direct physical, emotional, or financial harm as result of the commission of Federal crimes , offer the FBI's assistance to victims of these crimes and provide victims' contact information to the responsible FBI Victim Specialist (VS). The VS is thereafter responsible for keeping victims updated on the status of the investigation to the extent permitted by law, regulation, or policy, unless the victim has opted not to receive assistance . The FBI's responsibility for assisting victims is continuous as long as there is an open investigation (see the Office of Victim Assistance PG); 3.3.1.8 (U) OBTAIN APPROVAL (U//FOUO) Ensure appropriate supervisory approval is obtained for investigative activity as required in the DIOG. Obtain and document oral approval as specified in Section 3.4.2.2 below. Self-approval of DIOG activities is not permitted. See "No Self-Approval Rule" set forth in Section 3.4.2.3 below; 3.3.1.9 (U) ATTRIBUTE INFORMATIONTO ORIGINATORIN REPORTS (U//FOUO) Ensure that if the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way, FBI records (i.e., 302s, ECs, LHMs, etc.) reflect that another party, and not the FBI, is the originator of the characterization. Example: An FBI document should state: "The complainant advised that the subject was prejudiced and motivated by ethnic bias" rather than "The subject was prejudiced and motivated by ethnic bias ;" 3.3.1.10 (U) SERVEAS INVESTIGATION("CASE") MANAGER (U//FOUO) If assigned responsibility for an investigation, manage all aspects of that investigation, until it is assigned to another person. It is the employee's responsibility to ensure compliance with all applicable laws, rules, regulations, and guidelines, both Version Dated: October 15, 2011 3-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 investigative and administrative, from the opening of the investigation through disposition of the evidence, until the investigation is assigned to another person; 3.3.1.11 (U) CREATEAND MAINTAINRECORDS/FILES (U//FOUO) Create and maintain authentic, reliable, and trustworthy records, establish files, set leads, supervise investigations, index documents, and retain and share information, as specified in DIOG Section 14 and Appendix J; 3.3.1.12 (U) INDEXDOCUMENTS (U//FOUO) If assigned responsibility for an investigation, index information in documents. Current guidance for indexing documents may be found in DIOG Appendix J and on the RMD website: http ://home.fbinet.fbi/do /rmd/Pages /Default.aspx; 3.3.1.13 (U) SEEK FEDERALPROSECUTION (U//FOUO) Prefer Federal prosecution rather than state/local prosecution. An FBI employee may protect the FBI's resources and interests when discussing investigations with the United States Attorney's Office (USAO) by accurately representing the time and effort spent on an investigation. The USAO should be aware of this information prior to deciding whether he/she will decline prosecution in favor of handling by local authorities . Criminal investigations conducted by the FBI are designed to obtain evidence for prosecution in Federal court and not in state or local courts; and 3.3.1.14 (U) RETAIN NOTES MADE DURINGAN INVESTIGATION (U//FOUO) Retain in the investigative file (IA envelope) the following types of material developed when interviewing witnesses: A) (U) Statements signed by the witness. B) (U) Written statements, unsigned by the witness, but approved or adopted in any manner by the witness. C) (U) Original notes of interview with prospective witnesses and/or suspects and subjects. That is, in any interview where preparation of an FD-302 is required (an interview where it is anticipated the results will become the subject of court testimony) the handwritten notes must be retained. D) (U) Dictating interview notes on audio tape in lieu of handwritten notes may be viewed by a court as "original notes" and, therefore, must be retained. Dictation on audio tape of the results of an interview for transcription to a final FD-302 is not "original note" material and need not be retained. E) (U) An FBI employee's notes made to record his/her own finding, must always be retained. Such notes include, but are not limited to, accountant's work papers and notes covering matters such as crime scene searches, laboratory examinations, and fingerprint examinations. If there is a question whether notes must be retained, resolve the question in favor of retaining the notes. 3-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dcited: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 3.3.2 (U) DEFINITIONS OF TASK FORCE OFFICER (TFO), (TFM), TASK FORCE MEMBER AND TASK FORCE PARTICIPANT (TFP) (U//FOUO) It is required in some situations for the sponsoring agency of the TFO, TFM and TFP to enter into an MOU with the FBI that governs the activities of the Task Force. For purposes of the DIOG, TFO, TFM, and TFP are defined as follows: 3.3.2.1 (U) TASK FORCE OFFICER (TFO) (U//FOUO) An individual is a TFO when all of the following apply: A) (U//FOUO) The individual is a certified Federal, state, local, or tribal law enforcement officer; B) (U//FOUO) The individual is authorized to carry a firearm; C) (U//FOUO) The individual is currently deputized under either Title 21 or Title 18 of the U.S.C.; D) (U//FOUO) The individual has been issued Federal law enforcement credentials; E) (U//FOUO) The individual is assigned to the supervision of an FBI led task force; F) (U//FOUO) The individual has a security clearance recognized by the FBI that is currently active; and G) (U//FOUO) The individual is authorized to have access to FBI facilities. (U//FOUO) An FBI TFO is mandated to attend all DIOG related training, and is bound by all rules, regulations, and policies set forth in the DIOG when acting in the capacity as an FBI TFO. 3.3.2.2 (U) TASK FORCE MEMBER (TFM) (U//FOUO) An individual is a TFM when all of the following apply: A) (U//FOUO) The individual is an employee of a Federal, state, local, or tribal agency; B) (U//FOUO) The individual is assigned to the supervision of an FBI led task force; C) (U//FOUO) The individual has a security clearance recognized by the FBI that is currently active; and D) (U//FOUO) The individual is authorized to have access to FBI facilities. (U//FOUO) An FBI TFM is mandated to attend all DIOG related training, and is bound by all rules, regulations, and policies set forth in the DIOG when acting in the capacity as an FBI TFM. 3.3.2.3 (U) TASK FORCE PARTICIPANT (TFP) (I.E., TASK FORCE LIAISON) (U//FOUO) An individual is a TFP when he/she participates on an FBI-led task force and does not otherwise qualify as a TFO or TFM. A TFP is bound by all rules, regulations, and policies set forth in the DIOG when acting in the capacity as an FBI TFP. DIOG related training for an FBI TFP may be required by the head of the office/division that governs the activities of the Task Force. Ve1sion JLted: October I 'i 201l 3-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 3.4 §3 (U) SUPERVISORROLESAND RESPONSIBILITIES 3.4.1 (U) SUPERVISORDEFINED (U) The term "supervisor" as used in the DIOG includes (whether in a Field Office or FBIHQ) the following positions, or a person acting in such capacity: A) (U) Supervisory Special Agent (SSA) , B) (U) Supervisory Senior Resident Agent (SSRA), C) (U) Supervisory Intelligence Analyst (SIA) , D) (U) Legal Attache (Legat), E) (U) Deputy Legal Attache (DLAT), F) (U) Unit Chief (UC), G) (U) Assistant Special Agent in Charge (ASAC), H) (U) Assistant Section Chief (ASC), I) (U) Section Chief (SC), J) (U) Special Agent in Charge (SAC), K) (U) Deputy Assistant Director (DAD) , L) (U) Assistant Director (AD), M) (U) Assistant Director in Charge (ADIC) , N) (U) Associate Executive Assistant Director (A/EAD) , 0) (U) Executive Assistant Director (EAD) , P) (U) Associate Deputy Director (ADD) , and Q) (U) Deputy Director (DD). (U) The term "supervisor" is also intended to include any other FBI supervisory or managerial position that is not specifically listed above but is equal in rank and/or responsibility to these listed positions. (Note: TFOs /TFMs cannot be supervisors.) 3.4.2 3.4.2.1 (U) SUPERVISORRESPONSIBILITIES (U) APPROVAL/REVIEW OF INVESTIGATIVEOR COLLECTIONACTIVITIES (U//FOUO) Anyone in a supervisory role who approves /reviews investigative or collection activity must determine whether the standards for opening, approving, conducting , and closing an investigative activity, collection activity or investigative method, as provided in the DIOG , have been satisfied. 3.4.2.2 (U) ORALAUTHORITYI APPROVAL (U//FOUO) Unless otherwise specified by the AGG - Dom or FBI policy , any authority /approval required in the DIOG necessary to conduct investigative activities may be granted orally by the appropriate approving official. Should such oral authorization be 3-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versiori D,ited October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 granted , appropriate written documentation of the oral authorization must be documented by the FBI employee to the authorizing official as soon as practicable, but not more than five business days after the oral authorization. The effective date of any such oral authorization is the date on which the oral authority was granted, and that date and the name of the approving official must be included in the subsequent written documentation. (U//FOUO) Supervisors are not permitted to self-approve investigative or intelligence collection activity or methods in assessments or investigations assigned to them as case agents or analysts . An independent evaluation and approval of these activities must be obtained including the opening and closing of any Assessment or Predicated Investigation . See Section 3.4.2.3 below. 3.4.2.3 (U) No SELF-APPROVALRULE (U//FOUO) When approval /authority is required in the DIOG to open, utilize an investigative method , close , or perform any administrative requirement (i.e. initial paperwork to a file, perform a file review, etc.), an approving official (supervisor) may not "self-approve" his/her own work or activity. An independent evaluation and approval of these activities must be obtained , including the opening and closing of any Assessment or Predicated Investigation. (U//FOUO) Example: An SSA/SIA properly designates a relief supervisor on the squad to act as the SSA/SIA while the supervisor is on leave. The relief SSA/SIA may not approve anything related to his/her own investigations /work because supervisors are not permitted to self-approve investigative or intelligence collection activity or methods in files assigned to themselves. 3.4.2.4 (U) ENSURECOMPLIANCE WITH U.S. REGULATIONSAND OTHERAPPLICABLELEGAL AND POLICYREQUIREMENTS (U//FOUO) Supervisors must monitor and take reasonable steps to ensure that all investigative activity , collection activity and the use of investigative methods comply with the Constitution, Federal law, Executive Orders, Presidential Directives , AGG-Dom, other AGG, Treaties , Memoranda of Agreement/Understanding, the DIOG , and any other applicable legal and policy requirements. 3.4.2.5 (U) TRAINING (U//FOUO) Supervisors must obtain training on the DIOG standards relevant to his/her position and then conform decisions to those standards. Supervisors must also take reasonable steps to ensure that all subordinates have received the required training on the DIOG standards and requirements relevant to the subordinate's position. 3.4.2.6 (U) PROTECTCIVILLIBERTIESAND PRIVACY (U//FOUO) All supervisors must take reasonable steps to ensure that civil liberties and privacy are protected throughout the investigative process. Verc;ion Dat..:-d October 15, 2011 3-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 3.4.2.7 §3 (U) REPORT COMPLIANCECONCERNS (U//FOUO) If a supervisor encounters a practice that does not comply, or appears not to comply, with the law, rules, or regulations, the supervisor must report that compliance concern to the proper authority and, when necessary, take action to maintain compliance. For specific requirements and procedures for reporting departures and non-compliance with the AGG-Dom and the DIOG, see Sections 2.6 - 2.8. 3.4.2.8 (U) NON-RETALIATIONPOLICY (U//FOUO) Supervisors must not retaliate or take adverse action against persons who raise compliance concerns. (See CPD 0032D, 02/11/2008 for non-retaliation policy) 3.4.2.9 (U) CREATEAND MAINTAIN RECORDS/FILES (U//FOUO) Supervisors must ensure that FBI employees create and maintain authentic, reliable, and trustworthy records, establish files, set leads, supervise investigations, index documents, and retain and share information, as specified in DIOG Section 14. 3.4.3 {U) DELEGATION AND SUCCESSION IN THE FBI (U//FOUO) The ability to exercise legal authority within the FBI through delegations of legal authority and orderly succession to positions of authority is set forth in the Succession and Delegation Policy. 3.4.3.1 (U) DELEGATION (U//FOUO) As used in the DIOG, the term "delegation" refers to the conveyance of authority to another official ( either by position or to a named individual). FBI legal authority is generally delegable one supervisory level unless expressly permitted, prohibited, or restricted by law, regulation, or policy. For example, an SAC may delegate his/her authority to approve Sensitive Investigative Matters (SIMs) to an ASAC, but the ASAC cannot further delegate this authority to an SSA. Delegations will continue in effect until modified, revoked, superseded, the position no longer exists, or the named individual vacates the position. (U//FOUO) A supervisor may only delegate authority to another supervisor one level junior to himself or herself, unless specified otherwise (e.g., an ASAC may delegate authority to an SSA). SACs may, however, restrict delegations within their field offices, i.e., an SAC may prohibit ASACs from further delegating authorities that have been assigned to them. (U//FOUO) SSAs and Supervisory Intelligence Analysts (SIA) cannot "delegate" their authority because they are the first level of supervisory responsibility; however, a relief supervisor may exercise the SSA's authority when serving as the "acting" SSA (e.g., when the SSA is absent or unavailable). In the absence of the immediate approval authority , a supervisor at the same or higher level than that required may approve a particular activity (e.g., an Special Agent requests that his/her ASAC or SAC approve a Preliminary Investigation because the Agent's SSA is on a temporary duty assignment). 3-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers.on D.ited: Ottober 1'>.2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 3.4.3.2 (U) SUCCESSION:ACTING SUPERVISORY AUTHORITY (U//FOUO) As used in the DIOG, the term "succession" refers to the process by which an official assumes the authorities and responsibilities of an existing position, typically when the incumbent is absent, unavailable, unable to carry out official responsibilities, or has vacated the position. A person who temporarily succeeds to a position is referred to as "acting" in that position. (U//FOUO) The FBI follows the general rule, recognized in law, that employees properly designated as "acting" in a position exercise the full legal authorities of that position, unless specifically precluded by higher authority or by an applicable law, regulation, or policy. Accordingly, unless expressly precluded, any authority vested in an FBI supervisor pursuant to the DIOG may be exercised by someone who occupies that position in an acting status. An employee may be designated to an acting position either through a succession plan or ad hoc designation. See the FBI Succession and Delegation Policy for additional details. 3.4.3.3 (U) DOCUMENTATION (U//FOUO) Delegations of authority as well as succession plans and ad hoc designations must be documented in writing and maintained in an appropriate administrative file whenever practicable , unless specifically required by the DIOG. An administrative file has been created to maintain documentation of delegations of authority and ad hoc designations (3 l 9W-HQAl 487698-xx with the last two alpha characters designating particular field office, FBIHQ Division or Legat). An administrative file has also been created to maintain documentation of succession plans (319X-HQ-A 1538387-XX with the last two alpha characters designating the particular field office, FBIHQ Division or Legat). Documentation of acting authority may take place subsequent to the actual ad hoc designation. For example, an SSA orally advises his principal relief supervisor that he/she has an emergency and will not be able to come into the office. The ad hoc designation of the relief supervisor as acting SSA can be documented upon the SSA's return to the office. Failure to document an ad hoc designation does not invalidate the designation but may result in difficulty proving the appropriate exercise of authority ifrequired to do so. (See Section 3.4.2.2 above concerning oral authorizations and related documentation requirements). 3.4.4 (U) FILE 3.4.4.1 REVIEWS AND ]USTIFICATION REVIEWS (U) OVERVIEW (U//FOUO) The file review is designed to ensure investigative and intelligence activities are progressing adequately and conducted in compliance with applicable statutes, regulations, and FBI/DOJ policies and procedures. As a management tool, the file review process has proven effective for operational program oversight, tracking investigative and intelligence collection progress, ensuring investigative focus, and reduction of risk. (U//FOUO) Supervisory review of investigative files is especially important with regard to tracking the progress and development of new employees. It provides an opportunity for supervisors to guide employees on how properly to manage and document investigation files, and to use and document investigative methods, while emphasizing the importance of Version Dated. October 15, 2011 3-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 compliance and recognition of risk. In addition, the file review process is an opportunity to begin to evaluate an employee's level of performance and to identify his/her strengths and weaknesses. (U//FOUO) File reviews help supervisors to ensure their office is effectively supervising activities in its own territory and monitoring investigative activity carried out on their behalf in other field offices. For example, a supervisor may use a file review as a reasonable step to ensure the employee assigned an investigation has addressed all logical investigation in a timely manner, or to ensure the employee has successfully set necessary leads for other offices or other employees within his/her own office. 3.4.4.2 (U) TYPES OF FILES/INVESTIGATIONSREQUIRINGFILE REVIEWSAND JUSTIFICATION REVIEWS (U//FOUO) File reviews must be conducted for all Predicated Investigations, including investigations placed in "pending inactive" status, unaddressed work files, and Types 3 through 6 Assessments. Type 1 & 2 Assessments must have a 30 day justification reviews, as specified below. 3.4.4.3 (U) FREQUENCYOF FILE REVIEWS (U//FOUO) Supervisors must adhere to the following timeframes for file reviews: A) (U//FOUO) 90 Days -The supervisor must review the files for all investigations (including pending Predicated Investigations, pending inactive investigations, unaddressed work files, and Type 3 - 6 Assessments) assigned to each agent, Resident Agent, TFO, and IA every 90 calendar days. 1) (U//FOUO) 30 Additional Days: All documentation of the required reviews must be completed within 30 calendar days of the file review date. B) (U//FOUO) 60 Days - The supervisor must review the files for all investigations (including pending Predicated Investigations, pending inactive investigations, unaddressed work files, and Type 3 - 6 Assessments) assigned to each probationary employee (agent and IA) every 60 calendar days. 1) (U//FOUO) 30 Additional Days: All documentation of the required reviews must be completed within 30 calendar days of the file review date. 3.4.4.4 (U) FREQUENCYOF JUSTIFICATIONREVIEWS (U//FOUO) In addition to file reviews, every 30 days supervisors must complete "justification reviews" for Type 1 & 2 Assessments, as specified below. 3.4.4.5 (U) DELEGATIONOF FILE REVIEWS (U//FOUO) Thorough, complete and well conducted file reviews are an important part of the compliance regime, provide valuable and needed information for purposes of evaluating the performance of employees, and are critical to the effective management of a squad. For those reasons, file reviews are an important duty and responsibility for Supervisors, and Supervisors are discouraged from routinely delegating these reviews. Because, however, conducting a file review is an important developmental opportunity for primary relief supervisors, file reviews 3-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: Oltober lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 may be conducted by a duly designated acting supervisor or duly designated primary relief supervisor. Acting supervisors may conduct file reviews just as they would conduct any other supervisory duty while functioning in an acting capacity. Primary relief supervisors may conduct file reviews; however, when they do so, the next required file review must be conducted by a supervisor or duly designated acting supervisor. In other words, every other file review of any given investigative file must be conducted by a supervisor or duly designated acting supervisor. Acting supervisors may not review their own files under any circumstances. Acting supervisors must either reassign their investigations or have their investigations reviewed by another supervisor or an ASAC. 3.4.4.6 (U) FILE REVIEW REQUIREMENTS FOR PREDICATED INVESTIGATIONS & ASSESSMENTS (U//FOUO) A file review or justification review must be: conducted in person or by telephone when necessary (e.g., FBI employee is TDY or in a remote Resident Agency (RA)); conducted in private; and documented as specified below. (U//FOUO) The file review process requires the supervisor to review the investigative files assigned to the employee, discuss past progress and future objectives, and document that information on the Investigative Case Management (ICM) Case Review Sheet generated by ACS (commonly referred to as the "file review sheet"). Discussion and documentation must also include the progress of the investigation/ Assessment since the previous file review and the projected work for the time period until the next file review. (U//FOUO) When reviewing the employee's assigned investigative files, the supervisor should consider the following: A) (U//FOUO) Whether subject(s) have been indexed in compliance with indexing guidelines; B) (U//FOUO) Whether statistical accomplishments, i.e., FD-515 and FD-542, have been entered within established timeframes; C) (U//FOUO) Whether evidence has been stored and disposed of properly and whether documentation has been completed according to evidence control policies; D) (U//FOUO) Whether leads have been covered within established deadlines; E) (U//FOUO) Whether any National Security Letters have been issued in accordance with policy, including whether responsive materials have been appropriately examined (e.g., examined for overproduction); F) (U//FOUO)Whether any Federal Grand Jury Subpoenas have been issued in accordance with policy, including whether responsive materials have been appropriately examined (e.g., examined for overproduction); G) (U//FOUO) Whether any Administrative Subpoenas have been issued in accordance with policy, including whether responsive materials have been appropriately examined (e.g., examined for overproduction); H) (U//FOUO) Whether any Federal Grand Jury Materials covered by Rule 6e are properly marked and handled, including being appropriately restricted in ACS; I) (U//FOUO) Whether the Watchlist status of any subject(s) has been appropriately documented; Version Dated: October 15,2011 3-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 J) (U//FOUO) Whether the status of the Preliminary Investigation is current (e.g., has not expired or will not expire before the next file review) ; K) (U//FOUO) Whether any Potential Intelligence Oversight Board (JOB) violations have been reported in accordance with policy; and L) (U//FOUO) Whether relevant asset forfeiture statutes have been applied and their use documented. (U//FOUO) Supervisors must evaluate the proper use of investigative methods and ensure they are appropriately documented in the file. Leads and administrative actions must be documented in ECs. When evidence has been recovered , the supervisor must review all FD192s to ensure the evidence was handled appropriately . The supervisor should use the file review process as an opportunity to determine whether the employee has adequately used liaison and external contacts to further the investigation/ Assessment. In addition, the supervisor must assess whether the employee needs additional assistance, training, guidance , or other resources to successfully advance the investigation/ Assessment. (U//FOUO) The intelligence aspect of every investigation must be scrutinized during the file review process . The supervisor must determine whether the employee understands his/her responsibilities relative to intelligence collection and reporting and has ensured that investigative and intelligence aspects of each investigation complement each other. This includes examining whether the employee has adequately collaborated with the field office's intelligence component and exploited his/her investigations to obtain information relevant to standing intelligence collection requirements. The supervisor must review the files for potential intelligence collection and sharing opportunities, both cross-programmatic and interagency. The file review must document whether applicable intelligence products such as intelligence reports, bulletins and assessments, etc., have been or should be drafted based on investigative and intelligence information collected during the investigation. (U//FOUO) The supervisor must also evaluate whether the employee has been in communication with FBIHQ division entities , if appropriate , with respect to his/her investigative /intelligence activities. The supervisor must also evaluate whether the employee has coordinated with FBIHQ to obtain any special authorities /concurrences needed from DOJ/FBI components and other governmental agencies (e.g., CIA, DOS , and DOD) . (U//FOUO) The supervisor must consider and take into account the employee's collateral duties, such as SWAT, ERT, HAZMAT, Hostage Negotiator, training, TDY assignments and other activities constituting official business that could limit his/her ability to address his/her assigned caseload . The supervisor must take into account planned annual and sick leave, holidays and similar time constraints when estimating the employee 's overall work responsibilities for the next 90 day period. (U//FOUO) The supervisor must evaluate whether the employee is acting within all applicable statutes , regulations, and FBI/DOJ policies and procedures. Supervisors must keep in mind that how the employee accomplishes his or her tasks is just as important as whether he or she accomplishes them. Any compliance concerns must be immediately referred to the field office's compliance officer for discussion regarding what additional actions should be taken. For specific requirements and procedures for reporting departures and non-compliance with the AGG-Dom and the DIOG, see Sections 2.6 - 2.8. 3-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October !5, 2011 ~-oc--r.,...,._..,...,....,,"'""'r-,n n- and Op eration s Guide : rhe file review, the supervisor must ensure that the employee _ T . es to be accom plished over the next 90 calendar days and must - - ....... -:: n: -pe 1fically those expectations on the file review sheets. At this time the supervisor mu-c also prepa re an FD-865 (Performance Summary Assessment) for Special Agents per Corp orat e Policy Notice (CPN) 0043N . For all other employees, the supervisor has the option to prepare an FD-865. (U//FOUO) The supervisor must be diligent about documenting all aspects of the file review on the file review sheet and setting appropriate ticklers. 3.4.4.7 (U) TYPE 1 & 2 ASSESSMENTS- JUSTIFICATIONREVIEWS (U//FOUO) Supervisors must conduct 30-day justification reviews for Type 1 & 2 Assessments. Following the end of the 30-day period , the agent, TFO, or IA and the supervisor have up to 10 calendar days to complete all aspects of the justification review and to document the review. These justification reviews must address the following Assessment Review Standards (ARS): A) (U//FOUO) has progress been made toward achieving the authorized purpose and clearly defined objective(s); B) (U//FOUO) were the activities that occurred in the prior 30 calendar days appropriate and in compliance with applicable DIOG requirements ; C) (U//FOUO) is it reasonably likely that information will be obtained that is relevant to the authorized purpose and clearly defined objective(s), thereby warranting an extension for another 30 calendar days; D) (U//FOUO) has adequate predication been developed to open a Predicated Investigation; and E) (U//FOUO) should the Assessment be terminated. (U//FOUO) The justification review, including the ARS requirements , must be documented in the FD- 71 or the FD- 71 a (Guardian). 3.4.4.8 (U) TYPE 3, 4, AND 6 ASSESSMENTS-ASSESSMENT REVIEWSTANDARDS(ARS) (U//FOUO) In addition to the file review procedures documented on the File Review Sheet set forth above, supervisors are required to evaluate Type 3, 4 and 6 Assessments using the below- listed ARS during the file review every 90 calendar days (60 calendar days for probationary employees): A) (U//FOUO) has progress been made toward achieving the authorized purpose and clearly defined objective(s); B) (U//FOUO) were the activities that occurred in the prior 60 or 90 calendar days appropriate and in compliance with applicable DIOG requirements ; C) (U//FOUO) is it reasonably likely that information may be obtained that is relevant to the authorized purpose and clearly defined objective(s), thereby warranting an extension for another 60/90 calendar days; D) (U//FOUO) bas adequate predication been developed to open a Predicated Investigation on specific individuals identified during the Assessment; and Version Dated: October 15, 2011 3-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 E) (U//FOUO) should the Assessment be terminated. (U//FOUO) The ARS must be documented in an EC and uploaded to the Assessment file. (U//FOUO) The EC utilized to document the review of Type 3, 4 and 6 Assessments must be made part of the Assessment file. Therefore, the EC must not be used to memorialize other information, such as performance measures, investigative steps, possible outcomes, or compliance matters that are historically documented on the File Review Sheet. 3.4.4.9 (U) TYPE 5 ASSESSMENTS - ASSESSMENT REVIEW STANDARDS (ARS) (U//FOUO) In addition to the applicable file review procedures discussed above, supervisors are required to evaluate Type 5 Assessments using the below-listed ARS during the file review every 90 calendar days (60 days for probationary employees): A) (U//FOUO) whether authorized investigative methods have been used properly in all phases of the Assessment; B) (U//FOUO) whether, in the identification phase, the Assessment has successfully narrowed the field to a group of individuals who are likely to have appropriate placement and access; C) (U//FOUO) whether reimbursable expenses incurred by an SA, if any, were reasonable, properly authorized, and properly documented; D) (U//FOUO) whether the Potential CHS was "tasked" to provide information or paid for his/her services or expenses (activities which are not permitted prior to opening the person as a CHS); E) (U//FOUO) whether there is a reasonable likelihood that the Potential CHS can and should be recruited or, if the Assessment is in the Identification Phase, the plan has a reasonable likelihood of generating a group of Potential CHSs; and F) (U//FOUO) whether the Type 5 Assessment should continue for an additional 90 days (60 days for probationary employees). If continuation is justified, the SWSSA must document the rationale for keeping the Type 5 Assessment open. (U//FOUO) The review must be documented in an EC or successor form in DELTA and uploaded to the Assessment file. Because Type 5 Assessments are confidential, a Case Review Sheet is not available in ACS . (U//FOUO) The EC (or successor form in DELTA) utilized to document the evaluation of the ARSs for Type 5 Assessments must be made part of the Assessment file. Therefore, the EC (or successor form in DELTA) must not be used to memorialize other information, such as performance measures, investigative steps, possible outcomes, or compliance matters. 3.4.4.10 (U) DOCUMENTATION OF FILE REVIEWS (U//FOUO) Investigative Case Management (ICM) Case Review Sheets (also known as File Review Sheets) are currently generated by ACS. These must be completed by the supervisor as part of the file review process and maintained as a part of the employee's performance folder to be used as a tool in determining an employee's performance rating. Documents maintained for evaluations, including copies of File Review Sheets , must be destroyed within 30 calendar days after the expiration of the previous PAR year. The original File Review Sheets are to be maintained for inspection and other purposes not related to the performance appraisal process (FBI Corporate Policy Notice 0043N). 3-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vrrsion D,ited: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 (U//FOUO) Performance Summary Assessments (PSA) are required to be completed by the supervisor as part of the file review process (see FBI Corporate Policy Notice 0043N). The FD-865 must be used to memorialize the PSA. The form must be signed and dated by the supervisor. The original FD-865 must be submitted to the field office's executive management, which is responsible for ensuring that PSAs are conducted. One completed fQQY of the FD-865 must be placed in the employee's performance folder maintained by the rating official for inspection, mid-year progress reviews, development worksheets, and annual performance appraisal purposes (this provision does not apply to TFOs). A second completed copy must be given to the employee. FD-865s maintained for performance evaluation must be destroyed within 30 calendar days after the expiration of the previous Performance Annual Review (PAR) year . (U) RECORDSRETENTION 3.4.4.11 (U//FOUO) Supervisors must conduct , document and retain file reviews as specified above . Supervisors must maintain appropriate documentation and review it periodically with particular attention to documenting an employee's ability to successfully complete his or her investigative assignments and to documenting a probationary employee ' s success or failure during the probationary period . 3.5 (U) CHIEFDIVISION COUNSEL(CDC) ROLESAND RESPONSIBILITIES (U//FOUO) The CDC must review all Assessments and Predicated Investigations involving sensitive investigative matters as discussed in DIOG Section 10 as well as review the use of certain investigative methods as discussed in Section 18. The primary purpose of the CDC ' s review is to ensure the legality of the actions proposed. Review, in this context, includes a determination that the investigative activity is: (i) not legally objectionable (e.g., that it is not based solely on the exercise of First Amendment rights (i.e., the free exercise of speech, religion, assembly, press or petition) or on the race , ethnicity, national origin or religion of the subject); and (ii) founded upon an authorized purpose and/or adequate factual predication and meets the standard specified in the DIOG. The CDC should also include in his or her review and recommendation , if appropriate , a determination of the wisdom of the proposed action (e.g., the CDC may have no legal objection but may recommend denial because the value of the proposal is outweighed by the intrusion into legitimate privacy interests). The CDC's determination that an investigative activity is: (i) not legally objectionable ; and (ii) warranted from a mission standpoint is based on facts known at the time of the review and recommendation . Often, these facts are not verified or otherwise corroborated until the investigative activity commences. As a result, the CDC may require additional CDC reviews or provide guidance to supervisory personnel with regard to monitoring the results of the investigative activity to ensure that the authorized purpose and/or factual predication remains intact after the facts are developed. The regularity of such review is within the CDC's discretion. Activities found to be legally objectionable by the CDC may not be approved unless and until the CDC's determination is countermanded by the FBI General Counsel or a delegated designee. (U//FOUO) For investigative activities involving a sensitive investigative matter , the CDC must also independently consider the factors articulated in Section 10 and provide the approving Ver,;ion [1·1. ·d Octobc r !S, 2011 3-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 authority with a recommendation as to whether, in the CDC's judgment, the investigative activity should be approved. (U//FOUO) Throughout the DIOG, any requirement imposed on the CDC may be performed by an Associate Division Counsel (ADC) or a designated Acting CDC. 3.6 (U) OFFICEOF THE GENERALCOUNSEL(OGC) ROLESAND RESPONSIBILITIES (U//FOUO) The mission of the FBI's Office of the General Counsel (OGC) is to provide comprehensive legal advice to the Director, other FBI officials and divisions, and field offices on a wide array of national security, investigative, and administrative operations. In addition to providing legal advice as requested, OGC reviews the legal sufficiency of sensitive Title III affidavits and a wide variety of operational documents relating to foreign counterintelligence / international terrorism investigations, including requests for surveillance and physical searches pursuant to the Foreign Intelligence Surveillance Act (FISA) and undercover proposals, and manages the physical flow of FISA requests, applications, orders, and returns. OGC maintains liaison with the intelligence community on legal issues and reviews for legal sufficiency proposals to share information or form partnerships with other federal, state, local, and international agencies. OGC also supports federal criminal prosecutions by assisting in criminal discovery and by conducting reviews of personnel files, coordinates the defense of the FBI and its employees in civil actions which arise out of the FBI's investigative mission and personnel matters, and responds to Congressional requests for FBI documents. OGC addresses legal issues associated with the impact of communication and information technology on the ability of the FBI and other law-enforcement and intelligence agencies to execute their public safety and national security missions, including their ability to conduct authorized electronic surveillance. (U//FOUO) In coordination with the DOJ NSD, the OGC is responsible for conducting regular reviews of all aspects of FBI national security and foreign intelligence activities . The primary purpose of the OGC's review is to ensure the legality of the actions proposed. These reviews, conducted at FBI field offices and FBIHQ' units, broadly examine such activities for compliance with the AGG-Dom and other applicable requirements. Review, in this context, includes a determination that the investigative activity is: (i) not legally objectionable (e.g., that it is not based solely on the exercise of First Amendment rights or on the race, ethnicity, national origin or religion of the subject); and (ii) founded upon an authorized purpose and/or adequate factual predication and meets the standard specified in the DIOG. The OGC should also include in its review and recommendation, if appropriate, a determination of the wisdom of the proposed action (e.g., the OGC may have no legal objection but may recommend denial because the value of the proposal is outweighed by the intrusion into legitimate privacy interests). The OGC's determination that an investigative activity is: (i) not legally objectionable; and (ii) warranted from a mission standpoint is based on facts known at the time of the review and recommendation. Often these facts are not verified or otherwise corroborated until the investigative activity commences. As a result, the OGC may require additional OGC reviews or provide guidance to supervisory personnel with regard to monitoring the results of the investigative activity to ensure that the authorized purpose and/or factual predication remains intact after the facts are developed. The regularity of such review is within the discretion of OGC. 3-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version D.ited. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 (U//FOUO) For those investigative activities involving a sensitive investigative matter requiring OGC review, the OGC must independently consider the factors articulated in Section 10 and provide the approving authority with a recommendation as to whether, in the OGC's judgment, the investigative activity should be approved. (U//FOUO) Throughout the DIOG, any requirement imposed on the General Counsel may be delegated and performed by a designated OGC attorney. All delegations must be made as set forth in Section 3.4.3 above. 3.7 (U) CORPORATEPOLICYOFFICE(CPO) ROLESAND RESPONSIBILITIES (U//FOUO) Subject to the guidance of the Deputy Director, the CPO has oversight of the implementation of the DIOG. Working with the Deputy Director's office, the CPO may make revisions to the DIOG as necessary, following appropriate coordination with the OIC, OGC and other FBIHQ or field office entities. In the process of implementing and analyzing the DIOG, the CPO should report any apparent compliance risk areas directly to the OIC. Additionally, the CPO will work directly with the OIC to ensure that the policies, training and monitoring are adequate to meet compliance monitoring procedures. (U//FOUO) The CPO is responsible for ensuring the following: A) (U//FOUO) The DIOG is updated as necessary to comply with changes in the law, rules, or regulations ; B) (U//FOUO) The DIOG is reviewed every three years from the effective date of the 2011 revision, and revised as appropriate. This mandatory review schedule, however, does not restrict the CPO , which is responsible for all corporate policy matters, from working with FBIHQ divisions and field offices to make policy revisions to the DIOG and the PGs whenever necessary and appropriate during the three year period. The CPO may also make technical or non-substantive language or formatting changes to the DIOG, as necessary, provided those changes clarify the meaning without altering the substance; C) (U//FOUO) Existing and proposed investigative and administrative policies and PGs comply with the standards established in the AGG-Dom and DIOG. On behalf of the Deputy Director, the CPO has the authority, following coordination with the OIC and OGC, to modify or remove any provision of existing or proposed investigative or administrative policies or PGs determined to violate , contradict, or otherwise modify the intent or purpose of any provision or standard established in the AGG-Dom or the DIOG ; and D) (U//FOUO) If the CPO makes any changes to the DIOG or other policy pursuant to 3.7.B and/or C above, the CPO will immediately advise by e-mail all FBIHQ and field office Division Policy Officers (DPO) of such changes and all DPO must further advise their respective FBI employees of such changes. The electronic version of the DIOG maintained in the CPO's Policy and Guidance Library is the official current policy of the FBI . 3.8 (U) OFFICEOF INTEGRITYAND COMPLIANCE(OIC) ROLESAND RESPONSIBILITIES (U//FOUO) OIC is responsible for reviewing the DIOG and working with each FBIHQ division and the CPO to identify compliance risk areas and to ensure the adequacy of policy statements, training and monitoring. When compliance risk areas are identified, OIC must work with the Vers10n Dated: 0Ltober 15, 2011 3-18 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 divisions, field offices, and/or programs affected by the risk and develop programs to review the adequacy of policy statements, training, and monitoring in order to mitigate those concerns appropriately. 3.9 (U) OPERATIONALPROGRAMMANAGERROLESAND RESPONSIBILITIES (U//FOUO) In addition to managing national level programs, coordinating investigations , training, and providing guidance and oversight to the field, the FBIHQ Operational Program Managers are responsible for identifying, prioritizing, and analyzing potential compliance risks within their programs regarding implementation of the DIOG and developing mitigation plans where warranted. (U//FOUO) Operational Program Managers must proactively identify and take appropriate action to resolve potential compliance concerns. In identifying possible compliance concerns, Program Managers should consider the following indicators of possible compliance issues: A) (U//FOUO) Similar activities being handled differently from squad-to-squad I unit-to-unit I field office-to-field office; B) (U//FOUO) Unusually high level of contact with FBIHQ' division for basic information on how to conduct an activity; C) (U//FOUO) Apparent confusion over how to conduct a certain activity; D) (U//FOUO) Policy conflict; E) (U//FOUO) Non-existent/inaccurate /wrongly targeted training; F) (U//FOUO) Monitoring mechanisms that do not exist or do not test the right information (e.g. file reviews /program management); and G) (U//FOUO) Inadequate processes in place to audit for compliance. (U//FOUO) Operational Program Managers may not retaliate or take adverse action against persons who raise compliance concerns . 3.10 (U) DIVISION COMPLIANCEOFFICERROLESAND RESPONSIBILITIES (U//FOUO) Each FBIHQ division and field office must have a Division Compliance Officer (DCO). The DCO will proactively identify potential risk of non-compliance in the implementation of the DIOG and report them to the proper authority and the OIC. The DCO must always be aware that the focus of a compliance program is the identification and resolution of a compliance problem using non-punitive and non-retaliatory means. 3.11 (U) POSITION EQUIVALENTS-FBI HEADQUARTERS(FBIHQ) APPROVAL LEVELS (U//FOU O) The official position equivalents between the field offices and FBIHQ are outlined below. In general, an equivalent position at either the field or FBIHQ may exercise DIOG authority, unless the DIOG specifically limits a given authority. The equivalent positions are: A) (U//FOUO) Field Office Analyst or Special Agent= FBIHQ Analyst or Special Agent; 3-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated· October l 'i, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §3 B) (U//FOUO) Field Office SIA= FBIHQ SIA; C) (U//FOUO) CDC= FBIHQ OGC General Attorney; D) (U//FOUO) Field Office SSA= FBIHQ SSA; E) (U//FOUO) Field Office ASAC = FBIHQ UC; F) (U//FOUO) SAC= FBIHQ SC; and G) (U//FOUO) ADIC = FBIHQ AD. Version Dated: October 15, 2011 3-20 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 4 4.1 4.1.1 §4 (U) PRIVACY AND CIVIL LIBERTIES, AND LEAST INTRUSIVE METHODS (U) CIVIL LIBERTIES AND PRIVACY (U) OVERVIEW (U) The FBI is responsible for protecting the security of our nation and its people from crime and terrorism while maintaining rigorous obedience to the Constitution. The Attorney General's Guidelines for Domestic FBI Activities (AGG-Dom) establish a set of basic principles that serve as the foundation for all FBI mission-related activities. When these principles are applied, they demonstrate respect for civil liberties and privacy as well as adherence to the Constitution and laws of the United States. These principles are as follows: A) (U) Protecting the public includes protecting their rights and liberties. FBI investigative activity is premised upon the fundamental duty of government to protect the public, which must be performed with care to protect individual rights and to ensure that investigations are confined to matters of legitimate government interest. B) (U) Only investigate for a proper purpose. All FBI investigative activity must have an authorized law enforcement, national security, or foreign intelligence purpose. C) (U) Race, ethnicity, religion, or national origin alone can never constitute the sole basis for initiating investigative activity. Although these characteristics may be taken into account under certain circumstances, there must be an independent authorized law enforcement or national security purpose for initiating investigative activity. D) (U) Only perform authorized activities in pursuit of investigative objectives. Authorized activities conducted as part of a lawful assessment or investigation include the ability to: collect criminal and national security information, as well as foreign intelligence; provide investigative assistance to federal, state, local, tribal, and foreign agencies; conduct intelligence analysis and planning; and retain and share information. E) (U) Employ the least intrusive means that do not otherwise compromise FBI operations. Assuming a lawful intelligence or evidence collection objective, i.e., an authorized purpose, strongly consider the method (technique) employed to achieve that objective that is the least intrusive available (particularly it there is the potential to interfere with protected speech and association, damage someone's reputation, intrude on privacy, or interfere with the sovereignty of foreign governments) while still being operationally sound and effective. F) (U) Apply best judgment to the circumstances at hand to select the most appropriate investigative means to achieve the investigative goal. The choice of which investigative method to employ is a matter of judgment, but the FBI must not hesitate to use any lawful method consistent with the AGG-Dom when the degree of intrusiveness is warranted in light of the seriousness of the matter concerned. 4.1.2 (U) PURPOSE OF INVEST/GA TIVE ACTIVITY (U) One of the most important safeguards in the AGG-Dom--one that is intended to ensure that FBI employees respect the constitutional rights of Americans-is the threshold requirement that 4-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 all investigative activities be conducted for an authorized purpose . Under the AGG-Dom that authorized purpose must be an authorized national security, criminal, or foreign intelligence collection purpose. (U) Simply stating such a purpose, however, is not sufficient to ensure compliance with this requirement. The authorized purpose must be well-founded and well-documented. In addition, the information sought and the investigative method used to obtain it must be focused in scope, time, and manner to achieve the underlying purpose . Furthermore, the Constitution sets limits on what that purpose may be. It may not be solely to monitor the exercise of constitutional rights, such as the free exercise of speech, religion, assembly, press and petition, and, equally important, the authorized purpose may not be based solely on the race, ethnicity, national origin or religious beliefs of an individual, group, or organization or a combination of only those factors. (U) It is important to understand how the "authorized purpose" requirement and these constitutional limitations relate to one another. For example, individuals or groups who communicate with each other or with members of the public in any form in pursuit of social or political causes- such as opposing war or foreign policy, protesting government actions, or promoting certain religious beliefs- have a First Amendment right to do so. No investigative activity may be conducted for the sole purpose of monitoring the exercise of these rights . If a well-founded basis to conduct investigative activity exists , however, and that basis is not solely activity that is protected by the First Amendment or on the race, ethnicity, national origin or religion of the participants - FBI employees may assess or investigate these activities, subject to other limitations in the AGG-Dom and the DIOG. In such a situation , the investigative activity would not be based solely on constitutionally-protected conduct or on race, ethnicity, national origin or religion. Finally , although investigative activity would be authorized in this situation, it is important that it be conducted in a manner that does not materially interfere with the ability of the individuals or groups to engage in the exercise of constitutionally-protected rights. 4.1.3 (U) OVERSIGHTAND SELF-REGULATION (U) Every FBI employee has the responsibility to ensure that the activities of the FBI are lawful, appropriate and ethical as well as effective in protecting the civil liberties and privacy of individuals in the United States. Strong oversight mechanisms are in place to assist the FBI in carrying out this responsibility. Department of Justice (DOJ) oversight is provided through provisions of the AGG-Dom , other Attorney General Guidelines, and oversight by other DOJ components. DOJ and the FBI's Inspection Division, and the FBI's Office oflntegrity and Compliance (OIC) and Office of the General Counsel (OGC), also provide substantial monitoring and guidance. In the criminal investigation arena, prosecutors and district courts exercise oversight of FBI activities. In the national security and foreign intelligence arenas, the DOJ National Security Division (NSD) exercises that oversight. The DOJ NSD's Oversight Section and the FBI's OGC are responsible for conducting regular reviews of all aspects of FBI national security and foreign intelligence activities . These reviews, conducted at FBI field offices and FBI Headquarters (FBIHQ) divisions, broadly examine such activities for compliance with the AGG-Dom and other applicable requirements. In addition, the AGG-Dom creates additional requirements, including: A) (U) Required notification by the FBI to the DOJ NSD concerning a Full Investigation that involves foreign intelligence collection , a Full Investigation of a United States person Version Dated: October 15, 2011 4-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 (USPER) in relation to a threat to the national security, or a national security investigation involving a "sensitive investigative matter" (SIM) (see DIOG Section 10). B) (U) An annual report by the FBI to the DOJ NSD concerning the FBI's foreign intelligence collection program, including information reflecting the scope and nature of foreign intelligence collection activities in each FBI field office. C) (U) Access by the DOJ NSD to information obtained by the FBI through national security or foreign intelligence activities. D) (U) General authority for the Assistant Attorney General for National Security to obtain reports from the FBI concerning these activities. (AGG-Dom, Intro. C) (U) Further examples of oversight mechanisms include the involvement of both FBI and prosecutorial personnel in the review of undercover operations involving sensitive circumstances; notice requirements for investigations involving sensitive investigative matters; and notice and oversight provisions for Enterprise Investigations, which involve a broad examination of groups implicated in criminal and national security threats. These requirements and procedures help to ensure that the rule of law is respected in the FBI's activities and that public confidence is maintained in these activities. (AGG-Dom, Intro. C) (U) In addition to the above-described oversight mechanisms, the FBI is subject to a regime of oversight, legal limitations, and self-regulation designed to ensure strict adherence to the Constitution. This regime is comprehensive and has many facets, including the following: A) (U) The Foreign Intelligence Surveillance Act of 1978, as amended, and Title III of the Omnibus Crime Control and Safe Streets Act of 1968. These laws establish the processes for obtaining judicial approval of electronic surveillance and physical searches for the purpose of collecting foreign intelligence and electronic surveillance for the purpose of collecting evidence of crimes. B) (U) The Whistleblower Protection Acts of 1989 and 1998. These laws protect whistleblowers from retaliation. C) (U) The Freedom of Information Act of 1966. This law provides the public with access to FBI documents not covered by a specific statutory exemption. D) (U) The Privacy Act of 1974. This law balances the government's need to maintain information about United States citizens and legal permanent resident aliens with the rights of those individuals to be protected against unwarranted invasions of their privacy stemming from the government's collection , use, maintenance, and dissemination of that information. The Privacy Act forbids the FBI and other federal agencies from collecting information about how individuals exercise their First Amendment rights, unless that collection is expressly authorized by statute or by the individual, or is pertinent to and within the scope of an authorized law enforcement activity (5 U.S .C. § 552a[e][7]). Activities authorized by the AGG-Dom - with the exception of Positive Foreign Intelligence collection (see DIOG Section 9.3) - are authorized law enforcement activities or activities for which there is otherwise statutory authority for purposes of the Privacy Act. E) (U) Documents describing First Amendment activity that are subsequently determined to have been collected or retained in violation of the Privacy Act must be destroyed as set forth in Records Management Division (RMD) Policy Notice O108N. (U) Congress, acting primarily through the Judiciary and Intelligence Committees, exercises regular, vigorous oversight into all aspects of the FBI's operations. To this end, the National 4-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 Security Act of 1947 requires the FBI to keep the intelligence committees (for the Senate and House of Representatives) fully and currently informed of substantial intelligence activities. This oversight has significantly increased in breadth and intensity since the 1970's, and it provides important additional assurance that the FBI conducts its investigations according to the law and the Constitution. Advice on what activities fall within the supra of required congressional notification can be obtained from OCA [A Corporate Policy Directive is forthcoming]. (U) The FBI's intelligence activities (as defined in Section 3.4(e) of Executive Order (EO) 12333 [see DIOG Appendix B]) are subject to significant self-regulation and oversight beyond that conducted by Congress. The Intelligence Oversight Board (IOB), comprised of members from the President's Intelligence Advisory Board (PIAB), also conducts oversight of the FBI's intelligence activities. Among its responsibilities, the IOB must inform the President of intelligence activities the IOB believes: (i)(a) may be unlawful or contrary to EO or Presidential Decision Directive (PDD), and (b) are not being adequately addressed by the Attorney General, the Director of National Intelligence (DNI), or the head of the department concerned; or (ii) should be immediately reported to the President. The requirements and procedures for reporting potential IOB matters to OGC/NSLB can be found in Corporate Policy Directive O188D (Guidance on IOB Matters), and the Policy Implementation Guide (PG) Ol 88PG. (U) Internal FBI safeguards include: A) (U) the OGC's Privacy and Civil Liberties Unit (PCLU), which reviews plans for any proposed FBI record system for compliance with the Privacy Act and related privacy protection requirements and policies and which provides legal advice on civil liberties questions; B) (U) the criminal and national security undercover operations review committees, comprised of senior DOJ and FBI officials, which review all proposed undercover operations that involve sensitive circumstances; C) (U) the Sensitive Operations Review Committee (SORC), comprised of senior DOJ and FBI officials, which provides oversight of those investigative activities that may impact civil liberties and privacy and that are not otherwise subject to high level FBI and DOJ review; D) (U) the FBI requirement that all FBI employees report departures from and non-compliance with the DIOG to their supervisor, other management officials, or appropriate authorities as set forth in DIOG Sections 2.6 - 2.8 and 3 .1.1; and E) (U) training new FBI employees on privacy and periodic training for all FBI employees to maintain currency on the latest guidelines, changes to laws and regulations, and judicial decisions related to constitutional rights and liberties. 4.2 (U) PROTECTION OF FIRST AMENDMENT RIGHTS (U) A fundamental principle of the Attorney General's Guidelines for FBI investigations and operations since the first guidelines were issued in 1976 has been that investigative activity may not be based solely on the exercise of rights guaranteed by the First Amendment to the United States Constitution. This principle carries through to the present day in the AGG-Dom. The Privacy Act contains a corollary principle - the government is prohibited from retaining information describing how a person exercises rights under the First Amendment, unless that Versio"1 Dated. Octobtr 15, 2011 4-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 information is pertinent to or within the scope of an authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). (U) The First Amendment states: (U) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances . (U) Although the amendment appears literally to apply only to Congress, the Supreme Court made clear long ago that it also applies to activities of the Executive Branch, including law enforcement agencies. Therefore, for FBI purposes, it would be helpful to read the introduction to the first sentence as: "The FBI shall take no action respecting ... " In addition, the word "abridging" must be understood. "Abridging," as used here, means "diminishing." Thus, it is not necessary for a law enforcement action to destroy or totally undermine the exercise of First Amendment rights for it to be unconstitutional; significantly diminishing or lessening the ability of individuals to exercise these rights without an authorized investigative purpose is sufficient. (U) This is not to say that any diminution of First Amendment rights is unconstitutional. The Supreme Court has never held that the exercise of these rights is absolute. In fact, the Court has realistically interpreted the level and kind of government activity that violates a First Amendment right. For example, taken to an extreme, one could argue that the mere possibility of an FBI agent being present at an open forum (or as an on-line presence) would diminish the right of free speech by a participant in the forum because he/she would be afraid to speak freely. The Supreme Court, however, has never found an "abridgement" of First Amendment rights based on such a subjective fear. Rather, the Court requires an action that, from an objective perspective, truly diminishes the speaker's message or his/her ability to deliver it (e.g ., pulling the plug on the sound system). For another example, requiring protestors to use a certain parade route may diminish their ability to deliver their message in a practical sense, but the Court has made it clear, that for legitimate reasons (e.g., public safety), the government may impose reasonable limitations in terms of time, place and manner on the exercise of such rights, as long as the ability to deliver the message remains. I U) While the language of the First Amendment prohibits action that would abridge the enumerated rights, the implementation of that prohibition in the AGG-Dom reflects the Supreme Court's opinions on the constitutionality of law enforcement action that may impact the exercise of First Amendment rights. As stated above, the AGG-Dom prohibits investigative activity for the sole purpose of monitoring the exercise of First Amendment rights. The importance of the distinction between this language and the actual text of the First Amendment is two-fold: (i) the line drawn by the AGG-Dom prohibits even "monitoring" the exercise of First Amendment rights (far short of abridging those rights) as the sole purpose of FBI activity; and (ii) the requirement of an authorized purpose for all investigative activity provides additional protection for the exercise of constitutionally protected rights. U) The AGG-Dom classifies investigative activity that involves a religious or political organization (or an individual prominent in such an organization) or a member of the news media as a "sensitive investigative matter." That designation recognizes the sensitivity of con duct that traditionally involves the exercise of First Amendment rights by groups , e.g., who 4-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 1:;, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide associate for political or religious purposes or b.y the press. The requirements for opening and pursuing a "sensitive investigative matter" are set forth in DIOG Section 10. It should be clear, however, from the discussion below just how pervasive the exercise of First Amendment rights is in American life and that not all protected First Amendment activity will fall within the definition of a "sensitive investigative matter." Therefore, it is essential that FBI employees recognize when investigative activity may have an impact on the exercise of these fundamental rights and be especially sure that any such investigative activity has a valid law enforcement or national security purpose, even if it is not a "sensitive investigative matter" as defined in the AGG -Dom and the DIOG. (U) Finally, it is important to note that individuals in the United States (and organizations comprised of such individuals) do not forfeit their First Amendment rights simply because they also engage in criminal activity or in conduct that threatens national security. For example, an organization suspected of engaging in acts of domestic terrorism may also pursue legitimate political goals and may also engage in lawful means to achieve those goals. The pursuit of these goals through constitutionally protected conduct does not insulate them from legitimate investigative focus for unlawful activities-but the goals and the pursuit of their goals through lawful means remain protected from unconstitutional infringement. (U) When allegations of First Amendment violations are brought to a court oflaw, it is usually in the form of a civil suit in which a plaintiff has to prove some actual or potential harm. See, e.g., Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989) (challenging INS surveillance of churches). In a criminal trial, a defendant may seek either or both of two remedies as part of a claim that his or her First Amendment rights were violated: suppression of evidence gathered in the alleged First Amendment violation , a claim typically analyzed under the "reasonableness" clause of the Fourth Amendment, and dismissal of the indictment on the basis of "outrageous government conduct" in violation of the Due Process Clause of the Fifth Amendment. (U) The scope of First Amendment rights and their impact on FBI investigative activity are discussed below. The First Amendment's "establishment clause" - the prohibition against the government establishing or sponsoring a specific religion - has little application to the FBI and, therefore, is not discussed here. 4.2.1 (U) FREESPEECH (U) The exercise of free speech includes far more than simply speaking on a controversial topic in the town square. It includes such activities as carrying placards in a parade , sending letters to a newspaper editor, posting information on the Internet, wearing a tee shirt with a political message, placing a bumper sticker critical of the President on one ' s car, and publishing books or articles. The common thread in these examples is conveying a public message or an idea through words or deeds. Law enforcement activity that diminishes a person's ability to communicate in any of these ways may interfere with his or her freedom of speech- and thus may not be undertaken by the FBI solely for that purpose. (U) It is important to understand the line between constitutionally protected speech and advocacy of violence or of conduct that may lead to violence or other unlawful activity. In Brandenburg_v. Ohio, 395 U.S. 444 (1969), the Supreme Court established a two-part test to determine whether Version Dated: October 15, 2011 4-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 -uch speech is constitutionally protected: the government may not prohibit advocacy of force or violence except when such advocacy (i) is intended to incite imminent lawless action, and (ii) is likely to do so. Therefore, even heated rhetoric or offensive provocation that could conceivably lead to a violent response in the future is usually protected. Suppose, for example, a politically active group advocates on its web site taking unspecified "action" against persons or entities it view s as the enemy, who thereafter suffer property damage and/or personal injury. Under the Brandenburg two-part test, the missing specificity and imminence in the message may provide it constitutional protection. For that reason, law enforcement may take no action that, in effect, blo cks the message or punishes its sponsors. U) Despite the high standard for interfering with free speech or punishing those engaged in it, the law does not preclude FBI employees from observing and collecting any of the forms of pro tected speech and considering its content-as long as those activities are done for a valid law enforcement or national security purpose and are conducted in a manner that does not unduly infringe upon the ability of the speaker to deliver his or her message. To be an authorized purpose it must be one that is authorized by the AGG-Dom-i.e., to further an FBI Assessment, Predicated Investigation, or other authorized function such as providing assistance to other agencies. Furthermore, by following the standards for opening or approving an Assessment or Predicated Investigation as contained in the DIOG, the FBI will ensure that there is a rational relationship between the authorized purpose and the protected speech to be collected such that a reasonable person with knowledge of the circumstances could understand why the information is being collected. iU) Returning to the example posed above, because the group's advocacy of action could be directly related by circumstance to property damage suffered by one of the group's known targets, collecting the speech-although constitutionally protected-can lawfully occur. Similarly, listening to and documenting the public talks by a religious leader, who is suspected of raising funds for a terrorist organization, may yield clues as to his motivation, plan of action, and/or hidden messages to his followers. FBI employees should not, therefore, avoid collecting First Amendment protected speech if it is relevant to an authorized AGG-Dom purpose- as long as FBI employees do so in a manner that does not inhibit the delivery of the message or the ability of the audience to hear it, and so long as the collection is done in accordance with the discussion of least intrusive means or method in Section 4.4. I U) In summary, during the course of lawful investigative activities, the FBI may lawfully collect, retain, and consider the content of constitutionally protected speech, so long as: (i) the collection is logically related to an authorized investigative purpose; (ii) the collection does not actually infringe on the ability of the speaker to deliver his or her message; and (iii) the method of collection complies with the least intrusive method policy. 4.2.2 (U) EXERCISEOFRELIGION (U) Like the other First Amendment freedoms, the "free exercise of religion" clause is broader than commonly believed. First, it covers any form of worship of a deity-even forms that are commonly understood to be cults or fringe sects, as well as the right not to worship any deity. Second, protected religious exercise also extends to dress or food that is required by religious edict, attendance at a facility used for religious practice (no matter how unlikely it appears to be intended for that purpose), observance of the Sabbath, raising money for evangelical or 4-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers;on D.1ted: October 15, ~O11 l. ·c ..... -\-- :.FIED-F OR OFFICIAL USE ONLY Domestic ln\'esti gations and Operations Guide '":-- p .... .rposes . and proselyt izing. Even in controlled environments like prisons , religious ex.er 1se must be permit ted- subject to reasonable restrictions as to time , place, and manner. Another feature of this First Amendment right is that religion is a matter of heightened sensitivity to some Americans-especially to devout followers. For this reason, religion is a matter that is likely to provoke an adverse reaction if the right is violated - regardless of which religion is involved. Therefore, when essential investigative activity may impact this right, the investigative activity must be conducted in a manner that avoids the actual- and the appearance of-interference with religious practice to the maximum extent possible. (U) While there must be an authoriz ed purpose for any investigative activity that could have an impact on religious practice, this does not mean religious practitioners or religious facilities are completely free from being examined as part of an Assessment or Predicated Investigation. If such practitioners are involved in-or such facilities are used for- activities that are the proper subject of FBI-authorized investigative or intelligence collection activities, their religious affiliation does not "immunize" them to any degree from these efforts. It is paramount, however, that the authorized purpose of such efforts be properly documented. It is also important that investigative activity directed at religious leaders or at conduct occurring within religious facilities be focused in time and manner so as not to infringe on legitimate religious practice by any individual but especially by those who appear unconnected to the activities under investigation . (U) Furthermore, FBI employees may take appropriate cognizance of the role religion may play in the membership or motivation of a criminal or terrorism enterprise. If , for example , affiliation with a certain religious institution or a specific religious sect is a known requirement for inclusion in a violent organization that is the subject of an investigation , then whether a person of interest is a member of that institution or sect is a rational and permissible consideration. Similarly , if investigative experience and reliable intelligence reveal that members of a terrorist or criminal organization are known to commonly possess or exhibit a combination of religionbased characteristics or practices (e.g., group leaders state that acts of terrorism are based in religious doctrine) , it is rational and lawful to consider such a combination in gathering intelligence about the group-even if any one of these, by itself, would constitute an impermissible consideration. By contrast , solely because prior subjects of an investigation of a particular group were members of a certain religion and they claimed a religious motivation for their acts of crime or terrorism , other members' mere affiliation with that religion , by itself, is not a basis to assess or investigate-absent a known and direct connection to the threat under Assessment or investigation . Finally, the absence of a particular religious affiliation can be used to eliminate certain individuals from further investigative consideration in those scenarios where religious affiliation is relevant. 4.2.3 (U) FREEDOMOF THEPRESS (U) Contrary to what many believe, this well-known First Amendment right is not owned by the news media; it is a right of the American people. Therefore, this right covers such matters as reasonable access to news-making events , the making of documentaries , and various other forms of publishing the news . Although the news media typically seek to enforce this right , freedom of the press should not be viewed as a contest between law enforcement or national security , on the one hand , and the interests of news media, on the other. That said, the news gathering function is Version Dated: October 15, 2011 4-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 the aspect of freedom of the press most likely to intersect with law enforcement and national security investigative activities. (U) The interest of the news media in protecting confidential sources and the interest of agencies like the FBI in gaining access to those sources who may have evidence of a crime or national security intelligence often clash. The seminal case in this area is Branzburg v. Hayes, 408 U.S. 665 (1972), in which the Supreme Court held that freedom of the press does not entitle a news reporter to refuse to divulge the identity of his source to a federal grand jury. The Court reasoned that, as long as the purpose of law enforcement is not harassment or vindictiveness against the press, any harm to the news gathering function of the press (by revealing source identity) is outweighed by the need of the grand jury to gather evidence of crime. (U) Partially in response to Branzburg, the Attorney General promulgated regulations that govern the issuance of subpoenas for reporter's testimony and telephone toll records, the arrest of a reporter for a crime related to news gathering, and the interview of a reporter as a suspect in a crime arising from the news gathering process. In addition, an investigation of a member of the news media in his official capacity, the use of a reporter as a source, and posing as a member of the news media are all sensitive circumstances in the AGG-Dom, DIOG and other applicable AGGs. (U) These regulations are not intended to insulate reporters and other news media from FBI Assessments or Predicated Investigations. They are intended to ensure that investigative activity that seeks information from or otherwise involves members of the news media: A) (U) Is appropriately authorized; B) (U) Is necessary for an important law enforcement or national security objective; C) (U) ls the least intrusive means to obtain the information or achieve the goals; and D) (U) Does not unduly infringe upon the news gathering aspect of the constitutional right to freedom of the press. 4.2.4 (U) FREEDOMOFPEACEFULASSEMBLYAND TO PETITION THEGOVERNMENT FORREDRESS OF GRIEVANCES (U) Freedom of peaceful assembly, often called the right to freedom of association, presents unique issues for law enforcement agencies, including the FBI. Individuals who gather with others to protest government action, or to rally or demonstrate in favor of, or in opposition to, a social cause sometimes present a threat to public safety by their numbers, by their actions, by the anticipated response to their message, or by creating an opportunity for individuals or other groups with an unlawful purpose to infiltrate and compromise the legitimacy of the group for their own ends. The right to peaceful assembly includes more than just public demonstrations-it includes, as well, the posting of group web sites on the Internet, recruiting others to a cause, marketing a message, and fund raising. All are protected First Amendment activities if they are conducted in support of the organization or political, religious or social cause. (U) The right to petition the government for redress of grievances is so linked to peaceful assembly and association that it is included in this discussion. A distinction between the two is that an individual may exercise the right to petition the government by himself whereas assembly 4-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15.2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 4 necessarily involves others. The right to petition the government includes writing letters to Congress, carrying a placard outside city hall that delivers a political message, recruiting others to one's cause, and lobbying Congress or an executive agency for a particular result. (U) For the FBI, covert presence or action within associations or organizations, also called "undisclosed participation," has the greatest potential to impact this constitutional right. The Supreme Court addressed this issue as a result of civil litigation arising from one of the many protests against the Vietnam War. In Laird v. Tatum, 408 U.S. 1 (1972), the Court found that the mere existence of an investigative program-consisting of covert physical surveillance in public areas, infiltration of public assemblies by government operatives or sources, and the collection of news articles and other publicly available information-for the purpose of determining the existence and scope of a domestic threat to national security does not, by itself, violate the First Amendment rights of the members of the assemblies. The subjective "chill" to the right to assembly, based on the suspected presence of government operatives, did not by itself give rise to legal "standing" for plaintiffs to argue that their constitutional rights had been abridged. Instead, the Court required a showing that the complained-of government action would reasonably deter the exercise of that right. (U) Since Laird v. Tatum was decided, the lower courts have examined government activity on many occasions to determine whether it gave rise to a "subjective chill" or an "objective deterrent." The basic standing requirement establish by Laird remains unchanged today. The lower courts, however, have often imposed a very low threshold of objective harm to survive a motion to dismiss the case. For example, plaintiffs who have shown a loss of membership in an organization, loss of financial support, loss to reputation and status in the community, and loss of employment by members have been granted standing to sue. (U) More significant for the FBI than the standing issue has been the lower courts' evaluation of investigative activity into First Amendment protected associations since Laird. The courts have held the following investigative activities to be constitutionally permissible under First Amendment analysis: A) (U) Undercover participation in group activities; B) (U) Physical and video surveillance in public areas; C) (U) Properly authorized electronic surveillance; D) (U) Recruitment and operation of sources; E) (U) Collection of information from government, public, and private sources (with consent); and F) (U) The dissemination of information for a valid law enforcement purpose. (U) However, these decisions were not reached in the abstract. In every case in which the courts have found government action to be proper, the government proved that the action was conducted for an authorized law enforcement or national security purpose and that the action was conducted in substantial compliance with controlling regulations. In addition, in approving these techniques, the courts have often considered whether a less intrusive technique was available to the agency, and the courts have balanced the degree of intrusion or impact against the importance of the law enforcement or national security objective. Version Dated October 15, 2011 4-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 (U) By contrast, since Laird, the courts have found these techniques to be legally objectionable: A) (U) Opening an investigation solely because of the group's social or political agenda (even if the agenda made the group susceptible to subversive infiltration); B) (U) Sabotaging or neutralizing the group's legitimate social or political agenda; C) (U) Disparaging the group's reputation or standing ; D) (U) Leading the group into criminal activity that otherwise probably would not have occurred ; and E) (U) Undermining legitimate recruiting or funding efforts. (U) In every such case , the court found the government's purpose was not persuasive, was too remote, or was too speculative to justify the intrusion and the potential harm to the exercise of First Amendment rights. (U) Once again , the message is clear that investigative activity that involves assemblies or associations of individuals in the United States exercising their First Amendment rights must have an authorized purpose under the AGG-Dom - and one to which the information sought and the technique to be employed are rationally related. Less intrusive techniques should always be explored first and those authorizing such activity (which, as discussed above, will almost always constitute a sensitive investigative matter) should ensure that the investigative activity is focused as narrowly as feasible and that the purpose is thoroughly documented. 4.3 4.3.1 (U) EQUAL PROTECTION UNDER THE LAW (U) INTRODUCTION (U) The Equal Protection Clause of the United States Constitution provides in part that: "No State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws. " The Supreme Court and the lower courts have made it clear that the Equal Protection Clause applies to the official acts of United States government law enforcement agents . See, e.g., Whren v. United States, 517 U.S. 806 ( 1996); see also Chavez v. Illinois State Polic e, 251 F.3d 612 (7th Cir. 2001 ). Specifically, government employees are prohibited from engaging in invidious discrimination against individuals on the basis of race, ethnicity, national origin, or religious affiliation. This principle is further reflected and implemented for federal law enforcement in the United States Department of Justice's Guidance Regard ing the Use o(R ace by Federal Law Enforcement Agencies (hereinafter "DOJ Guidance on the Use of Race") . I U) Investigative and intelligence collection activities must not be based solely on race, ethnicity, national origin , or religious affiliation. Any such activities that are based solely on such onsiderations are invidious by definition , and therefore , unconstitutional. This standard applies to all investigative and collection activity , including collecting and retaining information, opening investigations, disseminating information, and indicting and prosecuting defendants . It 1- particularly applicable to the retention and dissemination of personally identifying information about an individual - as further illustrated in the examples enumerated below. 4-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 (U) The constitutional prohibition against invidious discrimination based on race, ethnicity, national origin or religion is relevant to both the national security and criminal investigative programs of the FBI. National security investigations often have ethnic aspects; members of a foreign terrorist organization may be primarily or exclusively from a particular country or area of the world. Similarly, ethnic heritage is frequently the common thread running through violent gangs or other criminal organizations. It should be noted that this is neither a new nor isolated phenomenon. Ethnic commonality among criminal and terrorist groups has been relatively constant and widespread across many ethnicities throughout the history of the FBI. 4.3.2 (U) POLICY PRINCIPLES (U) To ensure that Assessment and investigative activities and strategies consider racial, ethnic, national origin and religious factors properly and effectively and to help assure the American public that the FBI does not engage in invidious discrimination, the DIOG establishes the following policy principles: A) (U) The prohibition on basing investigative activity solely on race or ethnicity is not avoided by considering it in combination with other prohibited factors. For example, a person of a certain race engaging in lawful public speech about his religious convictions is not a proper subject of investigative activity based solely on any one of these factors-or by their combination . Before collecting and using information on race, religion or other prohibited factors , a well-founded and authorized investigative purpose must exist beyond these prohibited factors. B) (U) When race or ethnicity is a relevant factor to consider , it should not be the dominant or primary factor. Adherence to this standard will not only ensure that it is never the sole factor-it will also preclude undue and unsound reliance on race or ethnicity in investigative analysis. It reflects the recognition that there are thousands and , in some cases, millions of law abiding people in American society of the same race or ethnicity as those who are the subjects of FBI investigative activity , and it guards against the risk of sweeping them into the net of suspicion without a sound investigative basis. C) (U) The FBI will not collect or use behavior or characteristics common to a particular racial or ethnic community as investigative factors unless the behavior or characteristics bear clear and specific relevance to a matter under Assessment or investigation. This policy is intended to prevent the potential that collecting ethnic characteristics or behavior will inadvertently lead to individual identification based solely on such matters, as well as to avoid the appearance that the FBI is engaged in ethnic or racial profiling. 4.3.3 (U) GUIDANCEON THE USE OFRACE AND ETHNICIDENTITYIN ASSESSMENTS AND PREDICATEDINVEST/GATIONS (U) Considering the reality of common ethnicity or race among many criminal and terrorist groups , some question how the prohibition against racial or ethnic profiling is to be effectively applied - and not violated-in FBI Assessments and Predicated Investigations. The question arises generally in two contexts: (i) with respect to an individual or a group of individuals; and (ii) with respect to ethnic or racial communities as a whole. Ven,1011DJ•t>d Octobc r 1c;, :o11 4-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 4.3.3.1 (U) §4 INDIVIDUAL RACE OR ETHNICITY AS A FACTOR (U) The DOJ Guidance on the Use of Race permits the consideration of ethnic and racial identity information based on specific reporting-such as from an eyewitness. As a general rule, race or ethnicity as an identifying feature of a suspected perpetrator, subject, and in some cases, a victim, is relevant if it is based on reliable evidence or information-not conjecture or stereotyped assumptions. In addition, the DOJ Guidance on the Use of Race permits consideration of race or ethnicity in other investigative or collection scenarios if it is relevant. These examples illustrate: A) (U) The race or ethnicity of suspected members, associates, or supporters of an ethnic-based gang or criminal enterprise may be collected and retained when gathering information about or investigating the organization. B) (U) Ethnicity may be considered in evaluating whether a subject is-or is not- a possible associate of a criminal or terrorist group that is known to be comprised of members of the same ethnic grouping-as long as it is not the dominant factor for focusing on a particular person. It is axiomatic that there are many members of the same ethnic group who are not members of the criminal or terrorist group; for that reason, there must be other information beyond race or ethnicity that links the individual to the terrorist or criminal group or to the other members of the group. Otherwise, racial or ethnic identity would be the sole criterion , and that is impermissible. 4.3.3.2 4.3.3.2.1 (U) COMMUNITY RACE OR ETHNICITY AS A FACTOR (U) COLLECTING AND ANALYZING DEMOGRAPHICS (U) The DOJ Guidance on the Use of Race and FBI policy permit the FBI to identify locations of concentrated ethnic communities in the field office's domain, if these locations will reasonably aid the analysis of potential threats and vulnerabilities, and, overall, assist domain awareness for the purpose of performing intelligence analysis. If, for example, intelligence reporting reveals that members of certain terrorist organizations live and operate primarily within a certain concentrated community of the same ethnicity, the location of that community is clearly valuable-and properly collectible-data. Similarly, the locations of ethnic-oriented businesses and other facilities may be collected if their locations will reasonably contribute to an awareness of threats and vulnerabilities, and intelligence collection opportunities. Also, members of some communities may be potential victims of civil rights crimes and, for this reason, community location may aid enforcement of civil rights laws. Information about such communities should not be collected, however, unless the communities are sufficiently concentrated and established so as to provide a reasonable potential for intelligence collection that would support FBI mission programs (e.g., where identified terrorist subjects from certain countries may relocate to blend in and avoid detection). 4.3.3.2.2 (U) GEO-MAPPING ETHNIC/RACIAL DEMOGRAPHICS (U) As a general rule, if information about community demographics may be collected, it may be "mapped." Sophisticated computer gee-mapping technology visually depicts lawfully collected information and can assist in showing relationships among disparate data. By itself, 4-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 mapping raises no separate concerns about racial or ethnic profiling, assuming the underlying information that is mapped was properly collected. It may be used broadly - e.g ., for domain awareness of all relevant demographics in the field office's area ofresponsibility or to track crime trends - or narrowly to identify specific communities or areas of interest to inform a specific Assessment or investigation . In each case, the relevance of the ethnic or racial information mapped to the authorized purpose of the Assessment or investigation must be clearly demonstrated and documented. 4.3.3.2.3 (U) GENERAL ETHNIC/RACIAL BEHAVIOR (U) The authority to collect ethnic community location information does not extend to the collection of cultural and behavioral information about an ethnic community that bears no rational relationship to a valid investigative or analytical need . Every ethnic community in the Nation that has been associated with a criminal or national security threat has a dominant majority of law-abiding citizens , resident aliens , and visitors who may share common ethnic behavior but who have no connection to crime or terrorism (as either subjects or victims). For this reason , a broad-brush collection of racial or ethnic characteristics or behavior is not helpful to achieve any authorized FBI purpose and may create the appearance of improper racial or ethnic profiling. 4.3.3.2.4 (U) SPECIFIC AND RELEVANT ETHNIC BEHA V/OR (U) On the other hand , knowing the behavioral and life style characteristics of known individuals who are criminals or who pose a threat to national security may logically aid in the detection and prevention of crime and threats to the national security within the community and beyond . Focused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community (not with the community as a whole) may be collected and retained. For example, if it is known through intelligence analysis or otherwise that individuals associated with an ethnic-based terrorist or criminal group conduct their finances by certain methods , travel in a certain manner , work in certain jobs , or come from a certain part of their home country that has established links to terrorism , those are relevant factors to consider when investigating the group or assessing whether it may have a presence within a community. It is recognized that the "fit" between specific behavioral characteristics and a terrorist or criminal group is unlikely to be perfectthat is, there will be members of the group who do not exhibit the behavioral criteria as well as persons who exhibit the behaviors who are not members of the group. Nevertheless , in order to maximize FBI mission relevance and to minimize the appearance of racial or ethnic profiling , the criteria used to identify members of the group within the larger ethnic community to which they belong must be as focused and as narrow as intelligence reporting and other circumstances permit. If intelligence reporting is insufficiently exact so that it is reasonable to believe that the criteria will include an unreasonable number of people who are not involved , then it would be inappropriate to use the behaviors , standing alone , as the basis for FBI activity. Version Dated: October 15, 201 l 4-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 4.3.3.2.5 (U) EXPLOITIVE §4 ETHNIC BEHA VJOR (U) A related category of information that can be collected is behavioral and cultural information about ethnic or racial communities that is reasonably likely to be exploited by criminal or terrorist groups who hide within those communities in order to engage in illicit activities undetected. For example, the existence of a cultural tradition of collecting funds from members within the community to fund charitable causes in their homeland at a certain time of the year (and how that is accomplished) would be relevant if intelligence reporting revealed that, unknown to many donors, the charitable causes were fronts for terrorist organizations or that terrorist supporters within the community intended to exploit the unwitting donors for their own purposes. 4.4 4.4.1 (U) LEAST INTRUSIVE METHOD {U) OVERVIEW (U) The AGG-Dom requires that the "least intrusive" means or method be considered and-if reasonable based upon the circumstances of the investigation-used to obtain intelligence or evidence in lieu of a more intrusive method. This principle is also reflected in See Appendix B: Executive Order 12333, which governs the activities of the United States Intelligence Community. The concept of least intrusive method applies to the collection of all information. Regarding the collection of foreign intelligence that is not collected as part of the FBI's traditional national security or criminal missions, the AGG-Dom further requires that open and overt collection activity must be used with USPERs, if feasible. (U) By emphasizing the use of the least intrusive means to obtain information, FBI employees can effectively execute their duties while mitigating potential negative impact on the privacy and civil liberties of all people encompassed within the investigation, including targets, witnesses, and victims. This principle is not intended to discourage FBI employees from seeking relevant and necessary information, but rather is intended to encourage investigators to choose the least intrusive-but still reasonable-means from the available options to obtain the information. (U) This principle is embodied in statutes and DOJ policies on a variety of topics including electronic surveillance, the use of tracking devices, the temporary detention of suspects, and forfeiture. In addition, the concept of least intrusive method can be found in case law as a factor to be considered in assessing the reasonableness of an investigative method in the face of a First Amendment or due process violation claim. See Clark v. Library of Congress, 750 F.2d 89, 94-5 (D.C. Cir. 1984); Alliance to End Repression v. City of Chicago, 627 F. Supp. 1044, 1055 (N.D. Ill. 1985), citing Elrod v. Burns, 427 U.S. 347, 362-3 (1976). 4.4.2 (U) GENERAL APPROACH TO LEAST INTRUSIVE METHOD CONCEPT (U) Determining what constitutes the least intrusive method in an investigative or intelligence collection scenario is both a logical process and an exercise in judgment. It is logical in the sense that the FBI employee must first confirm that the selected technique will: A) (U) Gather information that is relevant to the Assessment or Predicated Investigation; 4-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver<,1011 Dated: October l <;,2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 B) (U) Acquire the information within the time frame required by the assessment or Predicated Investigation; C) (U) Gather the information consistent with operational security and the protection of sensitive sources and methods; and D) (U) Gather information in a manner that provides confidence in its accuracy. (U) Determining the least intrusive method also requires sound judgment because the factors discussed above are not fixed points on a checklist. They require careful consideration based on a thorough understanding of investigative objectives and circumstances. 4.4.3 (U) DETERMINING INTRUSIVENESS (U) The degree of procedural protection that established law and the AGG-Dom provide for the use of the method helps to determine its intrusiveness. Using this factor, search warrants, wiretaps, and undercover operations are very intrusive. By contrast, investigative methods with limited procedural requirements, such as checks of government and commercial data bases and communication with established sources, are less intrusive. (U) The following guidance is designed to assist FBI personnel in judging the relative intrusiveness of different methods: A) (U) Nature of the information sought: Investigative objectives generally dictate the type of information required and from whom it should be collected. This subpart is not intended to address the situation where the type of information needed and its location are so clear that consideration of alternatives would be pointless. When the option exists to seek information from any of a variety of places, however, it is less intrusive to seek information from less sensitive and less protected places. Similarly, obtaining information that is protected by a statutory scheme (e.g., financial records) or an evidentiary privilege (e.g., attorney/client communications) is more intrusive than obtaining information that is not so protected. In addition, if there exists a reasonable expectation of privacy under the Fourth Amendment (i.e., private communications), obtaining that information is more intrusive than obtaining information that is knowingly exposed to public view as to which there is no reasonable expectation of privacy. B) (U) Scope of the information sought: Collecting information regarding an isolated eventsuch as a certain phone number called on a specific date or a single financial transaction-is less intrusive or invasive of an individual's privacy than collecting a complete communications or financial "profile." Similarly, a complete credit history is a more intrusive view into an individual's life than a few isolated credit charges. In some cases, of course, a complete financial and credit profile is exactly what the investigation requires (for example, investigations of terrorist financing or money laundering). If so, FBI employees should not hesitate to use appropriate legal process to obtain such information if the predicate requirements are satisfied. Operational security-such as source protection-may also dictate seeking a wider scope of information than is absolutely necessary for the purpose of protecting a specific target or source. When doing so, however, the concept of least intrusive method still applies. The FBI may obtain more data than strictly needed, but it should obtain no more data than is needed to accomplish the investigative or operational security purpose. C) (U) Scope of the use of the method: Using a method in a manner that captures a greater picture of an individual's or a group's activities are more intrusive than using the same method or a different one that is focused in time and location to a specific objective. For example, it is Version Dated: October 15, 2011 4-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 less intrusive to use a tracking device to verify point-to-point travel than it is to use the same device to track an individual's movements over a sustained period of time. Sustained tracking on public highways would be just as lawful but more intrusive because it captures a greater portion of an individual's daily movements. Similarly, surveillance by closed circuit television that checks a discrete location within a discrete time frame is less intrusive than 24/7 coverage of a wider area. For another example, a computer intrusion device that captures only host computer identification information is far less intrusive than one that captures file content. D) (U) Source of the information sought: It is less intrusive to obtain information from existing government sources (such as state, local, tribal, international, or federal partners) or from publicly-available data in commercial data bases, than to obtain the same information from a third party (usually through legal process) that has a confidential relationship with the subject-such as a financial or academic institution. Similarly, obtaining information from a reliable confidential source who is lawfully in possession of the information and lawfully entitled to disclose it (such as obtaining an address from an employee of a local utility company) is less intrusive than obtaining the information from an entity with a confidential relationship with the subject. It is recognized in this category that the accuracy and procedural reliability of the information sought is an important factor in choosing the source of the information. For example, even if the information is available from a confidential source, a grand jury subpoena, national security letter, ex parte order, or other process may be required in order to ensure informational integrity and accuracy. E) (U) The risk of public exposure: Seeking information about an individual or group under circumstances that create a risk that the contact itself and the information sought will be exposed to the individual's or group's detriment and/or embarrassment-particularly if the method used carries no legal obligation to maintain silence-is more intrusive than information gathering that does not carry that risk. Interviews with employers, neighbors, and associates, for example, or the issuance of grand jury subpoenas at a time when the investigation has not yet been publicly exposed are more intrusive than methods that gather information covertly. Similarly, interviews of a subject in a discrete location would be less intrusive than an interview at, for example, a place of employment or other location where the subject is known. (U) There is a limit to the utility of this list of intrusiveness factors. Some factors may be inapplicable in a given investigation and, in many cases, the choice and scope of the method will be dictated wholly by investigative objectives and circumstances. The foregoing is not intended to provide a comprehensive checklist or even an overall continuum of intrusiveness. It is intended instead to identify the factors involved in a determination of intrusiveness and to attune FBI employees to select, within each applicable category, a less intrusive method if operational circumstances permit. In the end, selecting the least intrusive method that will accomplish the objective is a matter of sound judgment. In exercising such judgment, however, consideration of these factors should ensure that the decision to proceed is well founded. 4.4.4 (U) STANDARD FOR BALANCING INTRUSION AND INVEST/GA TIVE REQUIREMENTS (U) Once an appropriate method and its deployment have been determined, reviewing and approving authorities should balance the level of intrusion against investigative requirements. This balancing test is particularly important when the information sought involves clearly established constitutional, statutory, or evidentiary rights or sensitive circumstances (such as obtaining information from religious or academic institutions or public fora where First 4-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 Amendment rights are being exercised), but should be applied in all circumstances to ensure that the least intrusive method ifreasonable based upon the circumstances of the investigation is being utilized. (U) Balancing the factors discussed above with the considerations discussed below will help determine whether the method and the extent to which it intrudes into privacy or threatens civil liberties are proportionate to the significance of the case and the information sought. (U) Considerations on the investigative side of the balancing scale include the: A) (U) Seriousness of the crime or national security threat; B) (U) Strength and significance of the intelligence/information to be gained; C) (U) Amount of information already known about the subject or group under investigation; and D) (U) Requirements of operational security, including protection of sources and methods. (U) If, for example, the threat is remote, the individual's involvement is speculative, and the probability of obtaining probative information is low, intrusive methods may not be justified, and, in fact, they may do more harm than good. At the other end of the scale, if the threat is significant and possibly imminent (e.g., a bomb threat), aggressive measures would be appropriate regardless of intrusiveness. (U) In addition, with respect to the investigation of a group, if the terrorist or criminal nature of the group and its membership is well established (e.g., al Qaeda, Ku Klux Klan, Colombo Family of La Cosa Nostra), there is less concern that pure First Amendment activity is at stake than there would be for a group whose true character is not yet known (e.g., an Islamic charity suspected of terrorist funding) or many of whose members appear to be solely exercising First Amendment rights (anti-war protestors suspected of being infiltrated by violent anarchists). This is not to suggest that investigators should be less aggressive in determining the true nature of an unknown group that may be engaged in terrorism or other violent crime. Indeed, a more aggressive and timely approach may be in order to determine whether the group is violent or to eliminate it as a threat. Nevertheless, when First Amendment rights are at stake, the choice and use of investigative methods should be focused in a manner that minimizes potential infringement of those rights. Finally, as the investigation progresses and the subject's or group's involvement becomes clear, more intrusive methods may be justified. Conversely, ifreliable information emerges refuting the individual's involvement or the group's criminal or terrorism connections, the use of any investigative methods must be carefully reconsidered. (U) Another consideration to be balanced is operational security: if a less intrusive but reasonable method were selected, would the subject detect its use and alter his activitiesincluding his means of communication-to thwart the success of the operation? Operational security-particularly in national security investigations-should not be undervalued and may, by itself, justify covert tactics which, under other circumstances, would not be the least intrusive. 4.4.5 {U) CONCLUSION (U) The foregoing guidance is offered to assist FBI employees in navigating the often unclear course to select the least intrusive investigative method that effectively accomplishes the operational objective at hand. In the final analysis, choosing the method that must appropriately Version Dated: October 15, 2011 4-18 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §4 balances the impact on privacy and civil liberties with operational needs, is a matter of judgment , based on training and experience. Pursuant to the AGG-Dom, other applicable laws and policies, and this guidance, FBI employees may use any lawful method allowed, even if intrusive, where the intrusiveness is warranted by the threat to the national security or to potential victims of crime and/or the strength of the information indicating the existence of that threat. 4-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5 5.1 §5 (U) ASSESSMENTS [UJ0VERVIEWANDACTJVJTJESAUTHORJZEDPRIOR TO OPENING AN ASSESSMENT - F OUO) The AGG-Dom combines "threat assessments" under the former Attorney General's .ielines for FBI National Security Investigations and Foreign Intelligence Collection and the - :- mpt and extremely limited checking out of initial leads" under the former Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations ,nto a new ,nvestigative category entitled" Assessments." (U//FOUO) All Assessments must be documented in the appropriate form, to include an FD-71, Guardian (FD- 71 a), or EC, and the form must be placed in one of the following files: A) (U//FOUO) investigative classification as an Assessment file (e.g., 415A-WF-xxxxxx) ; B) (U//FOUO) zero sub-assessment file (e.g., 91-0-ASSESS-D ; 15-0-ASSESS; 315-0-ASSESSD); C) (U//FOUO) zero classification file (e.g. 196-WF-O). This file may be used if information is entered in the FD-71 or FD-71a and an Assessment is not opened based on that information; D) (U//FOUO) 800 series (801-807) classification file, as discussed in greater detail below ; E) (U//FOUO) unaddressedwork file; or F) (U//FOUO) existing open or closed file. (U//FOUO) Note: In the DIOG, the word "assessment" has two distinct meanings. The AGGDom authorizes as an investigative activity an "Assessment," which requires an authorized purpose as discussed in this section of the DIOG. The USIC, however, also uses the word "assessment" to describe written intelligence products, as discussed in DIOG Sections 15.2.3 and 15.6.1.2~ (U) Assessments authorized under the AGG-Dom do not require a particular factual predication but do require an authorized purpose and clearly defined objective(s). Assessments may be carried out to detect, obtain information about, or prevent or protect against Federal crimes or threats to the national security or to collect foreign intelligence. (AGG-Dom, Part II and Part II.A) (U//FOUO) Although "no particular factual predication" is required, the basis of an Assessment cannot be arbitrary or groundless speculation, nor can an Assessment be based solely on the exercise of First Amendment protected activities or on the race, ethnicity, national origin or religion of the subject. Although difficult to define, "no particular factual predication" is less than "information or allegation" as required for the initiation of a preliminary investigation (Pl). For example , an Assessment may be conducted when: (i) there is reason to collect information or facts to determine whether there is a criminal or national security threat; and (ii) there is a rational and articulable relationship between the stated authorized purpose of the Assessment on the one hand and the information sought and the proposed means to obtain that information on the other. An FBI employee must be able to explain the authorized purpose and the clearly 5-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY - ~·~-~·-· --- ' VersioP Dated: October l > 20 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 defined objective(s), and reason the particular investigative methods were used to conduct the Assessment. FBI employees who conduct Assessments are responsible for ensuring that Assessments are not pursued for frivolous or improper purposes and are not based solely on First Amendment activity or on the race, ethnicity, national origin, or religion of the subject of the Assessment, or a combination of only such factors . (AGG-Dom, Part II) (U//FOUO) When employees undertake activities authorized in DIOG Section 5.1.lbelow prior to opening an Assessment they must have a reason to undertake these activities that is tied to an authorized FBI criminal or national security purpose. 5.1.1 (U) ACTIVITIES AUTHORIZED PRIOR TO OPENING AN ASSESSMENT (U//FOUO) When initially processing a complaint , observation , or information , an FBI employee can use the following investigative methods: 5.1.1.1 (U) PUBLIC INFORMATION (U//FOUO) See DIOG section 18.5.1. (U//FOUO) Prior to opening an Assessment, consent searches are not authorized. However, if in the course of processing a complaint or conducting a clarifying interview of the complainant, the complainant volunteers to provide access to his personal or real property, an agent may accept and conduct a search of the item(s) or property voluntarily provided. 5.1.1.2 (U) RECORDS OR INFORMATION - FBI AND DOJ (U//FOUO) See DIOG section 18.5.2. 5.1.1.3 (U) RECORDS OR INFORMATION - OTHER FEDERAL, STATE, LOCAL, TRIBAL, OR FOREIGN GOVERNMENT AGENCY (U//FOUO) See DIOG Section 18.5.3 . 5.1.1.4 (U) ON-LINE SERVICES AND RESOURCES (U//FOUO) See DIOG Section 18.5.4. 5.1.1.5 (U) CLARIFYING INTERVIEW (U//FOUO) Conduct a voluntary clarifying interview of the complainant or the person who initially furnished the information. (U//FOUO) See DIOG Section 18.5.6. 5.1.1.6 (U) INFORMATION VOLUNTARILY PROVIDED BY GOVERNMENTAL OF PRIVATE ENTITIES (U//FOUO) See DIOG Section 18.5.7. (U//FOUO) With the benefit of a clarifying interview, checking records (existing /historical information), and/or asking an existing CHS about something that he or she already knows , an Ver,ion Dated October 15, 2011 5-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 FBI employee may be able to answer the following question when evaluating the initial complaint, observation , or information: Does the complaint, observation, or information appear to represent a credible basis to open an Assessment, with an authorized purpose and clearly defined objective(s), or to open a Predicated Investigation consistent with the standards set forth in the DIOG? (U//FOUO) Intelligence Analysis and Planning: These activities may allow the FBI employee to resolve a matter without the need to conduct new investigative activity , for which an Assessment or a Predicated Investigation must be opened. When conducting clarifying interviews and checking records as described above, FBI employees must always adhere to the core values and principles articulated in DIOG Sections 3 and 4. 5.1.2 (U) DOCUMENTATIONREQUIREMENTSFORRECORD CHECKS:(EXISTING /HISTORICAL INFORMATIONREFERREDTO IN SECTION5.1.1 ABOVE) (U//FOUO) FBI employees must document and retain records checks in an FD-71, FD-71 a or successor intake form or other system of records if, in the judgment of the FBI employee , there is a law enforcement, intelligence or public safety purpose to do so. If such record checks are documented, they must also be retained in one of the following files: A) (U//FOUO) zero classification file when no further investigative activity is warranted ; B) (U//FOUO) relevant open or closed zero sub-assessment file; C) (U//FOUO) rele vant open or closed Predicated Investigation file ; D) (U//FOUO) new Assessment or Predicated Investigation file, when further investigative activity is warranted ; or E) (U//FOUO) unaddressed work file. (U//FOUO) Additionally , through analysis of existing information, the FBI employee may produce products that include, but are not limited to: an Intelligence Assessment, Intelligence Bulletin and Geospatial Intelligence (mapping). If , while conducting analysis, the FBI employee finds a gap in intelligence that is relevant to an authorized FBI activity , then the FBI employee can identify the gap for possible development of a "collection requirement." The FBI employee must document this analysis in the applicable 801-807 classification file (or other 800-series classification file as directed in the Intelligence Policy Implementation Guide (IPG)). See the IPG for file classification guidance . 5.1.3 (U) LIAISONACTIVITIESAND TRIPWIRES (U) Some FBI activities are not traditional investigative or intelligence activities. Activities such as liaison, tripwires , and other community outreach represent relationship-building efforts or other pre-cursors to developing and maintaining good partnerships. These activities are critical to the success of the FBI's mission . DIOG Section 11 addresses liaison activities and tripwires . 5.2 (U) PURPOSE AND SCOPE U//FOUO) The FBI cannot be content to wait for leads to come in through the actions of others ; rather, we must be vigilant in detecting criminal or national security threats to the full extent 5-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY -, ~ , ~ - V.'rsion Dated: 15, 2011 OltOJ..!f -~-- UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 permitted by law, with an eye towards early intervention and prevention of criminal or national security incidents before they occur. For example, to carry out the central mission of protecting the national security, the FBI must proactively collect information from available sources in order to identify threats and activities and to inform appropriate intelligence analysis. Collection required to inform such analysis will appear as FBI National Collection Requirements and FBI Field Office Collection Requirements. Likewise, in the exercise of its protective functions, the FBI is not constrained to wait until information is received indicating that a particular event, activity or facility has drawn the attention of would-be perpetrators of crime or terrorism. The proactive authority conveyed to the FBI is designed for, and may be used by, the FBI in the discharge of these responsibilities. The FBI may also conduct Assessments as part of its special events management responsibilities. (AGG-Dom, Part II) (U) More broadly, detecting and interrupting criminal activities at their early stages, and preventing crimes from occurring in the first place, is preferable to allowing criminal plots to come to fruition. Hence, Assessments may also be undertaken proactively with such purposes as detecting criminal activities; obtaining information on individuals, groups, or organizations of possible investigative interest, either because they may be involved in criminal or national security-threatening activities or because they may be targeted for attack or victimization in such activities; and identifying and assessing individuals who may have value as confidential human sources. (AGG-Dom, Part II). (U//FOUO) As described in the scenarios below, Assessments may be used when an "allegation or information" or an "articulable factual basis" (the predicates for Predicated Investigations) concerning crimes or threats to the national security is obtained and the matter can be checked out or resolved through the relatively non-intrusive methods authorized in Assessments (use of least intrusive means). The checking of investigative leads in this manner can avoid the need to proceed to more formal levels of investigative activity (Predicated Investigation), if the results of an Assessment indicate that further investigation is not warranted. (AGG-Dom, Part II) Hypothetical fact patterns are discussed below: 5.2.1 (U) SCENARIOS (UIFOUO) Scenario 1: Based upon a newspaper or trusted publication article related to an emerging criminal problem, an FBI employee wishes to analyze information/data already contained in FBI data systems, query ChoicePoint, NCIC and search the Internet for information to identify and understand trends, causes, and potential indicia of criminal activity and other threats to the United States that would not be apparent from the investigation of discrete matters alone. (U//FOUO) Response 1: The FBI employee can query and analyze record checks in computer database systems, including the Internet, without opening an Assessment pursuant to Section 5.1.1.1-5. The FBI employee may produce products that include, but are not limited to, Intelligence Assessments, Intelligence Bulletin and Geospatial Intelligence (mapping). Additionally, if the FBI employee identifies a gap in intelligence relevant to an authorized FBI activity, the FBI employee may submit the gap for possible development as a "collection requirement." As specified in Section 5.1.2 above, the FBI employee may document this analysis in the applicable 801-807 classification file (or Version Dated: October 15, 2011 5-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 other 800-series classification file as directed in the IPG). See the IPG for file classification guidance. (U//FOUO) Because the FBI employee has not conducted any new investigative activity or used an investigative method described in DIOG Sections 18.5 - 18.7 these queries can be made without opening an Assessment. (U/FOUO) Scenario 2: A marina owner contacts the local FBI office stating that five Middle Eastern males have just rented a boat for three days and asked for marine charts. (U//FOUO) Response 2: Without additional information, it would not be appropriate to conduct an Assessment, because there is no indication of criminal conduct, a threat to the national security, or information that might be foreign intelligence information. The fact that the men are Middle Eastern is not, standing alone, a reason to open an Assessment. (UIFOUO) Scenario 3: A marina owner contacts the local FBI office stating that five males, who appear to be Middle Eastern, have just rented a boat for three days and asked for marine charts. The owner also stated the men asked him to circle the military installations and nuclear power plants on the marine charts. (UIIFOUO) Response 3: Because of the potential for either criminal activity or a threat to the national security, this scenario provides an authorized purpose for conducting an Assessment. The FBI can conduct an Assessment for the purpose of ascertaining the intentions of the five males. In this scenario, the men's national origin is not the motivating factor for the Assessment. It could, however, be a factor the FBI would consider in conducting the Assessment if relevant intelligence makes their national origin relevant (for example, if existing intelligence reporting suggested that Al Qaeda was planning an attack using boats as a means of attack). (U/FOUO) Scenario 4: A field office wishes to acquire the following information/data within its Area of Responsibility (AOR) in order to proactively identify threats and domain awareness, including: (i) general demographics (e.g., general population to include concentrations ofracial and ethnic groups; location ofreligious institutions); (ii) location of violent gang activity; (iii) residences of parolees and probationers; and (iv) location of military installations and defense contractors. After acquiring this information/data, the field office wants to map it. (U//FOUO) Response 4: A Type 4 Assessment with an authorized purpose for gathering this data must be opened so that a field office can acquire all of the above information. In this scenario, the authorized purpose would be to facilitate intelligence analysis and planning. In addition to an "authorized purpose," a field office must also have a clearly defined objective(s) for acquiring the particular information and data, which may not be based solely on activities protected by the First Amendment or on race, ethnicity, national origin or religion. The FBI employee must document this AOR analysis in the applicable 818A through F or 815 H classification file (or other 800-series classification file as directed in the IPG). See the IPG for file classification guidance. (U//FOUO) Scenario 4 may only be opened as an Assessment. 5-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (UIFOUO) Scenario 5: While en-route to work in the morning an FBI employee notices two individuals in a parked car in the parking lot of a closed bank. The bank is not scheduled to open for several hours. There is nothing peculiar about the situation other than the fact that the individuals appear to just be sitting there. The bus arrives and the FBI employee goes to work. The next day the FBI employee notices the same two individuals in the same car just sitting in the lot. (U/IFOUO) Response 5: It is unusual for people to sit in a vacant parking lot hours before a business is scheduled to open. The individuals might simply be meeting there to carpool to work, or they may be conducting preoperational surveillance of the bank and surrounding area. The facts as noted do not create the inference or allegation of criminal activity sufficient to open a Preliminary Investigation. In this situation, however, the FBI employee can conduct an Assessment to determine whether the individuals' presence is lawful or not. (U//FOUO) Scenario 5 may only be opened as an Assessment. (U/FOUO) Scenario 6: An FBI employee receives a complaint from an individual regarding a letter that was faxed to him from an alleged foreign prince. The letter involved the recovery of a large sum of money if the individual will provide his bank account information to the prince by a telephone number provided in the letter. The letter states the individual should not tell law enforcement about the possible recovery because the money was embezzled from the foreign government. (U/IFOUO) Response 6: Because this is likely a fraud, the FBI can conduct an Assessment for the purpose of determining the validity of the complaint, identifying the subject, the contents of the letter, and to determine whether further investigative action is appropriate. This scenario also meets the standard to open a Preliminary Investigation. (U/FOUO) Scenario 7: The FBI receives an anonymous letter threatening a "dirty bomb" attack; however, the letter contains inaccurate information about the process for making a "dirty bomb." (UI/FOUO) Response 7: Because of the potential for criminal conduct and a threat to the national security, this scenario provides an authorized purpose for an Assessment. The FBI can conduct an Assessment for the purpose of identifying the drafter of the threatening letter and potential targets or vulnerabilities to criminal activities or threats to the national security. This scenario also meets the standard to open a Preliminary Investigation. (U/FOUO) Scenario 8: An FBI employee in an FBI field office receives a memorandum from a flight school indicating that it has received a large number of students registering for flight school to learn to fly large commercial airplanes who seem unusually illprepared with minimal relevant aviation skills. (UIIFOUO) Response 8: Because of the potential for criminal conduct and a threat to the national security, this scenario provides an authorized purpose for an Assessment. This scenario also meets the standard to open a Preliminary Investigation. Vers10n Dated October 15, 2011 5-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5.3 §5 (U) CIVILLIBERTIESAND PRIVACY (U) The pursuit of legitimate goals without infringing upon the exercise of constitutional freedoms is a challenge that the FBI meets through the application of sound judgment and discretion. In order to ensure civil liberties are not infringed upon through Assessments, every Assessment must have an authorized purpose and clearly defined objective(s). The authorized purpose and clearly defined objective(s) of the Assessment must be documented and retained as described in this section and in DIOG Section 14. (U) Even when an authorized purpose is present, an Assessment could create the appearance that it is directed at or activated by constitutionally-protected activity, race, ethnicity, national origin or religion-particularly under circumstances where the link to an authorized FBI mission is not readily apparent. In these situations, it is vitally important that the authorized purpose and the clearly defined objective(s), as well as the use of any investigative methods, are well documented. (U) No investigative activity, including Assessments, may be taken solely on the basis of activities that are protected by the First Amendment or on the race, ethnicity, national origin or religion of the subject, or a combination of only such factors. If an Assessment touches on or is partially motivated by First Amendment activities, or by race, ethnicity, national origin or religion, or a combination of only such factors, it is particularly important to identify and document the basis for the Assessment with clarity. (U//FOUO) Example: Individuals or groups who communicate with each other or with members of the public in any form in pursuit of social or political causes-such as opposing war or foreign policy, protesting government actions, promoting certain religious beliefs, championing particular local, national, or international causes, or advocating a change in government through non-criminal means, and actively recruiting others to join their causes-have a fundamental constitutional right to do so. An Assessment may not be opened based solely on the exercise of these First Amendment rights. If, however, a group exercising its First Amendment rights also threatens or advocates violence or destruction of property, an Assessment would be appropriate. (U) The AGG-Dom require that the "least intrusive" means or method be considered and-if reasonable based upon the circumstances of the investigation - used in lieu of more intrusive methods to obtain information, intelligence and/or evidence. This principle is also reflected in Executive Order 12333 (see Appendix B), which governs the activities of the USIC. Executive Order 12333 lays out the goals, directions, duties and responsibilities of the USIC. The concept of least intrusive means applies to the collection of all information, intelligence and evidence, not just that collected by those aspects of the FBI that are part of the intelligence community. (U) By emphasizing the use of the least intrusive means to obtain information, intelligence, and/or evidence, FBI employees can effectively execute their duties while mitigating the potential negative impact on the privacy and civil liberties and the damage to the reputation of all people encompassed within the investigation or Assessment, including targets, witnesses, and victims. This principle is not intended to discourage FBI employees from seeking relevant and necessary intelligence, information, or evidence, but rather is intended to encourage FBI employees to choose the least intrusive-but still reasonable based upon the circumstances of the 5-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 investigation-means I.C.2) 5.4 5.4.1 from the available options to obtain the information. (AGG-Dom, Part (U) FIVE TYPES OF ASSESSMENTS (U) ASSESSMENT (AGG-DOM, PART 11.A.3.) TYPES (U) There are five (5) authorized types of Assessments that may be carried out for the purposes of detecting, obtaining information about, or preventing or protecting against Federal crimes or threats to the national security or to collect foreign intelligence. The types of Assessments are: A) (U) Type 1 & 2 Assessmenl-: Seek information, proactively or in response to investigative leads, relating to activities - or the involvement or role of individuals, groups, or organizations relating to those activities - constituting violations of Federal criminal law or threats to the national security; B) (U) Type 3 Assessment: Identify, obtain and utilize information about actual or potential national security threats or Federal criminal activities, or the vulnerability to such threats or activities; C) (U) Type 4 Assessment: Obtain and retain information to inform or facilitate intelligence analysis and planning; D) (U) Type 5 Assessment: Seek information to identify potential human sources, assess their suitability, credibility, or value of individuals as human sources; and E) (U) Type 6 Assessment: Seek information, proactively or in response to investigative leads, relating to matters of foreign intelligence interest responsive to foreign intelligence requirements. 5.5 (U) STANDARDS FOR OPENING OR APPROVING AN ASSESSMENT (U//FOUO) Before opening or approving an Assessment, an FBI employee or approving official must determine whether: A) (U//FOUO) An authorized purpose and clearly defined objective(s) exists for the conduct of the Assessment; B) (U//FOUO) The Assessment is not based solely on the exercise of First Amendment activities or on the race, ethnicity, national origin or religion of the subject, or a combination of only such factors; and C) (U//FOUO) The Assessment is an appropriate use of personnel and financial resources. 4 (U//FOUO) In the original DIOG (12/16/2008), types land 2 were considered to be separate Assessment types. Because they, however, have many commonalities, they were merged into one type (named a "Type 1 & 2 Assessment") for purposes of this version of the DIOG. Hence, there are now five, not six, types of Assessments. Ve s10r l t Oc o , ·r t , 2 ' t 5-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5.6 (U) POSITION §5 EQUIVALENTS, EFFECTIVE DATE, DURATION, DOCUMENTATION, APPROVAL, NOTICE, FILE REVIEW AND RESPONSIBLE ENTITY 5.6.1 (U) FIELD OFFICE AND FBJHQ POSITION EQUIVALENTS (U//FOUO) FBIHQ and FBI field offices have the authority to conduct all Assessment activities as authorized in Section 5.4 above. Position equivalents for field office and FBIHQ personnel when FBIHQ opens, conducts, or closes an Assessment are specified in DIOG Section 3.11. 5.6.2 (U) EFFECTIVE DATE OFASSESSMENTS (U//FOUO) For all Assessments, the effective date of the Assessment is the date the final approval authority approves the FD- 71, Guardian (FD-71 a) or EC. Documenting the effective date of an Assessment is important for many reasons, including establishing time frames for justification and file reviews, and extensions . The effective date of the final approval authority occurs when: A) (U//FOUO) For Type 1 & 2 Assessments: the SSA or SIA opens and assigns the FD-71 or Guardian (FD-7la) to the employee; (U//FOUO) Note: In Type 1 & 2 Assessments only, employees do not need to obtain supervisory approval prior to opening the Assessment. If, however , oral approval is obtained , employees must memorialize the oral approval date in the body of the FD-71 or Guardian (FD-7la). B) (U//FOUO) For Type 3 - 6 Assessments: the SSA, SIA , or the DI opens and assigns the Assessment by: (i) the electronic signature /date generated by Sentinel - or successor case management system; or (ii) handwriting his/her initials and date on the EC; or C) (U//FOUO) For Sensitive Investigative Matters (SIM) Assessments: the SAC (or SC) authorizes the Assessment to be opened and assigned to an FBI employee by : (i) approving the FD-71 or Guardian (FD-7la); (ii) the electronic signature /date generated by Sentinel - or successor case management system; or (iii) handwriting his/her initials and date on the EC. (See DIOG Sections 5.7 and 10). 5.6.3 (U) ASSESSMENT TYPES (U//FOUO) The applicable duration, documentation, approval level, notice, justification/file review, and responsible entity requirements for each of the five (5) types of Assessments are discussed below. (U//FOUO) In all types of Assessments, investigative leads, either Action Required or Information Only, may only be set by EC, FD-71 or Guardian (FD-7 la). 5.6.3.1 (U) TYPE 1 & 2 ASSESSMENTS (U) Type 1 & 2 Assessment defined: Seek information, proactively or in response to investigative leads, relating to activities - or the involvement or role of individuals, groups, or organizations in those activities - constituting violations of Federal criminal law or threats to the national security (i.e., the prompt checking of leads on individuals, activity, groups or organizations). 5-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY ~.______ ..._.,_ ~-- Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (U//FOUO) See Section 5.11 below for intelligence collection (i.e. , incidental collection) and documentation requirements . All incidental collection must be documented in the 8151 field office file. 5.6.3.1.1 (U) DURATION (U//FOUO) There is no time limit for a Type 1 & 2 Assessment , but it is anticipated that such Assessments will be relatively short. 5.6.3.1.2 (U) DOCUMENTATION (U//FOUO) The authorized purpose(s) and clearly defined objective(s) for the Type 1 & 2 Assessment must be documented in the FD-71 or Guardian. Guardian (FD-71a) must be used to document Type l& 2 Assessments that pertain to international terrorism , domestic terrorism, weapons of mass destruction terrorism , and cyber terrorism. The electronic FD- 71, as discussed below, must be used to document all other Type 1 & 2 Assessments (i.e. , criminal, other cyber). (U//FOUO) An FBI employee must also document in the FD-71 or Guardian (FD-71a) the use of, or the request and approval for the use of, authorized investigative methods. By exception, an EC may be required to document the use and approval of particular investigative methods. The results of the use of investigative methods must also be documented in the FD- 71 or Guardian, or by exception , in an EC. The completed FD-71 or Guardian requires supervisor approval before being uploaded. (U//FOUO) All investigative documents (FD-302's, ECs, surveillance logs, etc.) must be referenced , and attached or linked electronically to the appropriate FD-71 or Guardian consistent with the instructions in the FD-71 and Guardian programs. (U//FOUO) Type 1 & 2 Assessments that are not converted to a Predicated Investigation must be uploaded to a "zero" sub-assessment file (e.g., 91-0-ASSESS-D , 15-0-ASSESS) within the appropriate classification as described in Section 5.14. The DIOG prohibits the use of control files or administrative files to document investigative activity. (See DIOG Appendix J) 5.6.3.1.3 (U) APPROVAL TO OPEN (U//FOUO) An FBI employee may open a Type 1 & 2 Assessment without supervisor approval. After receipt of the complaint or other information that triggers the Assessment, the FBI employee must complete an FD- 71 or Guardian as soon as practicable to document this type of Assessment. The SSA or SIA must either assign an FBI employee to conduct the Assessment based upon information contained in the FD- 71 or Guardian or close the Assessment. The opening date for Type 1 & 2 Assessments is the date the SSA or SIA assigns an FBI employee to conduct the Assessment. The FBI employee and SSA or SIA must apply the standards for opening or approving a Type 1 & 2 Assessment contained in DIOG Section 5.5. Vers10n Dated October 15, 2011 5-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5.6.3.1.4 §5 (U) SENSITIVE INVEST/GA TIVE MATTERS {SIM) (U//FOUO) As soon as practicable, but not more than five (5) business days after determining the Type 1 & 2 Assessment involves a sensitive investigative matter (SIM), the matter must be reviewed by the CDC and approved by the SAC. The term "sensitive investigative matter" is defined in DIOG Section 5.7 and DIOG Section 10. The FD-71 or Guardian has selection options in the form to designate the Assessment as a "Sensitive Investigative Matter" and to document the required review and approvals. 5.6.3.1.5 (U)NOTICE (U//FOUO) There is no requirement to provide notice to FBIHQ or DOJ of opening or closing Type 1 & 2 Assessments. 5.6.3.1.6 (U) ]UST/FICA TION REVIEW (U//FOUO) If a Type 1 & 2 Assessment is not concluded within 30 days, the SSA or SIA must conduct a justification review every 30 days (recurring until the Assessment is closed) in accordance with DIOG Section 3.4.4. 5.6.3.1.7 (U) RESPONSIBLE ENTITY (U//FOUO) A Type 1 & 2 Assessment may be conducted by an investigative field office squad or FBIHQ operational division. 5.6.3.1.8 5.6.3.1.8.1 (U) EXAMPLES/SCENARIOS OF TYPE 1 & 2 ASSESSMENTS (U) EXAMPLE 1 (U//FOUO) Scenario: A series of news articles in May and June report on a shakeup in Gloucester County government. The June 18th front page article was captioned "County Government Hijacked by Board of Supervisors." One of the elected Supervisors (X), according to the story, has a familial relationship to a prominent local developer, who has submitted a zoning request to the county board of supervisors for a 1200 unit residential and golf course community. (U//FOUO) Response: Without supervisor approval, an FBI employee on the Public Corruption Squad may begin to track the story by conducting routine internal FBI database checks for possible business affiliations, personal family relationships, criminal history, and any references in FBI files to the Developer or the County Supervisor X. (U//FOUO) The FBI employee can conduct record checks (search FBI/ DOJ records, USIC records , any other US government records, state or local records), and Internet searches (whether open-source or paid-for services) without opening an Assessment. Because the FBI employee is reviewing existing information already in its possession or to which it has lawful access, this does not constitute new investigative activity. (See Section 5 .1.1) If an employee does not establish an authorized purpose to open an Assessment (or Predicated Investigation) after conducting these records checks or 5-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version D,ited: 0Ltober 15,2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 Internet searches, the FBI employee should refer to Section 5 .1.2 above for documenting these activities. (U//FOUO) Without supervisor approval, the FBI employee may ask an open confidential human source (CHS), whose placement is such that he/she might have relevant knowledge, what he/she knows about the Developer and County Supervisor X. If an Assessment is opened, the FBI employee may also task the CHS (without supervisor approval) to contact the Developer for the purpose of seeking information about the Developer's future project plans. In either instance the FBI employee must ensure that he or she is using the least intrusive method that is reasonable based upon the circumstances of the investigation. Because this is a sensitive investigative matter (domestic public official) , as soon as practicable , but not more than five (5) business days after the SIM arises, it must be brought to the CDC for review and to the SAC for approval to continue the Assessment. The initiation date for this type of Assessment is the date the SAC approves the Assessment. The FBI employee must memorialize the contact with the CHS in DELTA and complete an FD-71. 5.6.3.1.8.2 (U) EXAMPLE 2 (U//FOUO) Scenario : An FBI employee receives a telephone call from an anonymous caller who complains about a new emigre Imam at a local mosque. The caller says the Imam has been making radical statements in public and private conversations and has openly invited all male mosque members between the ages of 16 and 40 to join a Wednesday night "awakening" meeting. Afterwards, according to the caller, a few select attendees are chosen to go to another room where, the caller believes, they talk about conducting holy war against the United States. (U//FOUO) Response: Because this is a terrorism-related item, the FBI employee must enter the information into Guardian and be assigned a Guardian lead by the supervisor. Additionally , because this Assessment involves a sensitive investigative matter (a religious figure), as soon a practicable , but not more than five (5) business days after the SIM arises , this matter must be forwarded to the CDC for review and the SAC for approval. Without supervisor approval, but consistent with the requirement to use the least intrusive method feasible, the FBI employee may also contact a CHS to determine whether the CHS knows or has heard anything about the new Imam. The FBI employee must memorialize the contact in DELTA. Investigative methods used in this Assessment must be documented in Guardian , and if any methods required supervisor approval, those approvals must also be documented in Guardian. 5.6.3.2 (U) TYPE 3 ASSESSMENTS (U) Type 3 Assessment defined: Identify, obtain and utilize information about actual or potential national security threats or Federal criminal activities, or the vulnerability to such threats or activities. [See AGG-Dom, Part 11.A.3.b] (U//FOUO) Type 3 Assessments may be used to analyze or determine whether particular national security or criminal threats exist within the AOR and whether there are victims or targets within the AOR who are vulnerable to any such actual or potential threats. The Version Dated: October 15, 2011 5-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 authorized purpose and clearly defined objective(s) of a Type 3 Assessment must be based on or related to actual or potential Federal criminal or national security targets, threats, or vulnerabilities. While no particular factual predication is required, the basis of the Assessment cannot be arbitrary or groundless speculation, nor can the Assessment be based solely on the exercise of First Amendment protected activities or on race, ethnicity, national origin or religion, or a combination of only such factors. (U//FOUO) Whenever a Type 3 Assessment identifies and begins to focus on a specific individual(s), group(s) or organization(s), whose activities may constitute a violation of Federal criminal law or a threat to the national security, a separate Type 1 & 2 Assessment or a Predicated Investigation must be opened on that individual, group or organization. (U//FOUO) A Type 3 Assessment may not be opened based solely upon the existence of a collection requirement, and addressing a collection requirement cannot be the authorized purpose of a Type 3 Assessment. Information obtained during the course of this type of assessment (or any other Assessment or Predicated Investigation) may, however, be responsive to collection requirements and collection requirements may be used to inform and help focus a Type 3 Assessment (or any other Assessment or Predicated Investigation) while also providing information about potential targets, threats and/or vulnerabilities . (U//FOUO) Investigative activity undertaken during Special Events assessments (such as "Joint Threat Assessments," "Joint Special Event Threat Assessments," and "Special Events Threat Assessments") must be documented using a Type 3 Assessment opened under the relevant investigative classification ( e.g., 415, etc) or the 8001 classification. Opening a Type 3 Assessment for these events does not eliminate the requirement to use the 300A classification as a control file for administrative functions related to the special event; the 300A control file cannot be used to maintain or upload investigative / Assessment documents. (U//FOUO) A Type 3 Assessment may not be used for the purpose of collecting positive foreign intelligence, although such intelligence may be incidentally collected. Positive foreign intelligence can only be intentionally collected pursuant to DIOG Sections 5.6.3.5 (Type 6 Assessment) and/or Section 9. (U//FOUO) See Section 5.11 below for intelligence collection, (i.e., incidental collection) and documentation requirements. All incidental collection must be documented in the 8151 field office file. 5.6.3.2.1 (U) DURATION (U//FOUO) A Type 3 Assessment may only be opened with prior supervisor approval. The effective date of the Assessment is the date the final approval authority approves the EC as specified in Section 5.6.2 above. A Type 3 Assessment may continue for as long as necessary to achieve its authorized purpose and clearly defined objective(s). Although a Type 3 Assessment is not limited in duration, when the clearly defined objective(s) have been met, the Assessment must be closed with an EC approved by the supervisor . 5-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 5.6.3.2.2 (U) DOCUMENTATION (U//FOUO) The title/caption of the opening EC must contain the word "Assessment," and the synopsis must identify the authorized purpose and the clearly defined objective(s) of the Assessment. If appropriate, the Details section of the EC may provide more details regarding the authorized purpose and clearly defined objective(s). If additional objectives arise during the course of the Assessment, they must be documented with an EC and approved by the supervisor. If at the time of the opening , or at anytime thereafter, the Assessment involves a sensitive investigative matter, the title/caption must also contain the words "Assessment" and "Sensitive Investigative Matter." (See DIOG Section 10.4) (U//FOUO) Additionally, ifDIOG Section 18 requires documentation of the approval to use an authorized investigative method in an Assessment, such requests, as well as all uses of those methods, must be documented by an EC. (U//FOUO) If opened by the DI, a Regional Intelligence Group (RIG), or a Field Intelligence Group (FIG), the Type 3 Assessment must be documented in the appropriate 80 ll-8071 or 8151 classification file. A Type 3 Assessment opened by an investigative division or investigative field office squad must be documented in the appropriate investigative classification Assessment file. The DIOG prohibits the use of control files or administrative files to document investigative activity. (See DIOG Appendix J) 5.6.3.2.3 (U) APPROVAL (U//FOUO) All Type 3 Assessments must be approved in advance by a supervisor and opened by EC. Notwithstanding any other provision in the DIOG, a Type 3 Assessment cannot be opened based on oral approval. The supervisor must review and approve a Type 3 Assessment in accordance with the standards set forth in Section 5.5. Additional approval requirements apply to SIMs, as described below. 5.6.3.2.4 (U) SENSITIVE INVESTIGATIVE MATTERS (SIM} (U//FOUO) If the Assessment involves a sensitive investigative matter, the CDC must review and the SAC must approve the Assessment prior to opening. If a SIM arises after the opening of a Type 3 Assessment, Assessment activity may continue, but the matter must be documented in an EC reviewed by the CDC and approved by the SAC as soon as practicable but not more than five (5) business days after the SIM arises . The term "sensitive investigative matter" is defined in DIOG Sections 5.7.1 and Section 10. (U//FOUO) Investigative methods that may be used in Assessments are set forth in DIOG Section 18. (U//FOUO) As specified in division PGs, there may be agreements (e.g., Memoranda of Understanding, Treaties) that require additional coordination and approval prior to conducting certain activities. Ve1s10n Dated October 15, 2011 5-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5.6.3.2.5 §5 (U)NOTICE (U//FOUO) There is no requirement to provide notice to FBIHQ or DOJ of opening or closing Type 3 Assessments. 5.6.3.2.6 (U) FILE REVIEW (U//FOUO) A Type 3 Assessment requires file reviews in accordance with DIOG Section 3.4.4. 5.6.3.2.7 (U) RESPONSIBLE ENTITY (U//FOUO) A Type 3 Assessment may be opened and conducted by FIGs, RIGs, the DI, field office investigative squads, and FBIHQ operational divisions. The nature of the Assessment dictates the file classification into which the Type 3 Assessment is opened. Assessments conducted by the DI, FIGs or RIGs must be opened in the appropriate 8001 - 8071, or 8151 file classifications. All other Assessments must be opened in the appropriate investigative file classification. 5.6.3.2.8 5.6.3.2.8.1 (U) EXAMPLES OF TYPE 3 ASSESSMENTS (U) EXAMPLE 1 (U/FOUO) Scenario: A state awards substantial grant money from Congress for road improvements over a 10 year period. The local population and business trends do not appear to support a need for such improvements, and the state has a history of corruption in awarding contracts. A review of the newspaper and the Internet shows a pattern of similar awards from the same state office over the past six months. (U//FOUO) Response: The field office may open a Type 3 Assessment to determine the potential vulnerability of the grant process to corruption (e.g., misdirection of funds or kickbacks to public officials). If the Assessment is likely to obtain information relevant to a SIM as defined in DIOG Section 10 (e.g. , possible kickbacks to a domestic public official) , the FBI employee must obtain CDC review and SAC approval before opening this assessment, or if the SIM develops after the Assessment is open, such review and approval must be obtained within 5 business days. If while conducting this Assessment information is obtained that addresses a national or field office collection requirement , that information should be disseminated to the appropriate entity . 5.6.3.2.8.2 (U) EXAMPLE 2 (U/FOUO) Scenario: A field office learns , by reading an Intelligence Bulletin , that a foreign intelligence service has recently "stepped up" its efforts to collect technical information about a particular type of avionic equipment. Other available intelligence community products confirm the foreign intelligence service's interest in the equipment and report that the service has sought to identify engineers of a particular nationality with access to the technology and with possible interest in assisting the development for their former country. 5-15 uWCLASSff/ELJ-FO.R OFF/C/AL VSE OMY Venio/1 Dated· October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (U//FOUO) Response: The field office may open a Type 3 Assessment to determine whether any manufacturers or engineering facilities within its territory produce or contribute to the design or production of the avionic equipment sought and whether they or their employees may be a target of or vulnerable to the foreign intelligence service's attempts to exploit this technology. If while conducting this Assessment information is obtained that addresses a national or field office collection requirement, that information should be disseminated to the appropriate entity. 5.6.3.2.8.3 (U) EXAMPLE 3 (U/FOUO) Scenario: Local newspapers report that a number of ethnic restaurants in a field office's territory have recently been vandalized and one restaurant owner has suggested that a non-traditional organized crime group may be trying to extort these restaurants. (U//FOUO) Response: The field office may open a Type 3 Assessment to determine whether the non-traditional organized crime group is trying to establish a presence within the field office's AOR (making businesses in the AOR potential targets of or vulnerable to the group's extortionate behavior). The field office would want to acquire information to determine whether the vandalism is attributed to any organized crime group and whether the vandalism appeared to have a purpose. If such a link is established and a specific group or persons are identified as likely responsible for the vandalism, the field office should determine whether a Type 1 & 2 Assessment or a Predicated Investigation should be opened on those identified subjects. Moreover, if the Assessment obtains information that is responsive to a national or field office collection requirement, that information should be disseminated to the appropriate entity. 5.6.3.2.8.4 (U) EXAMPLE 4 (U/FOUO) Scenario: A field office receives an IIR originating from a neighboring field office that identifies an Outlaw Motorcycle Gang (OMG) prominent in the originating office's domain. The receiving office is unaware of any reports or investigations indicating the presence of the particular OMG within its domain, but it would like to know whether the particular OMG has established such a presence. A Type 3 Assessment could be opened to determine whether the particular OMG has established a presence in the receiving field office's domain and the extent to which the office's domain may be a target of or vulnerable to criminal activities of this OMG (e.g., the extent and scope of this threat). (U//FOUO) Response: If, through this Assessment , it is determined that the particular OMG has, is, or is about to engage in criminal activities, and the field office wants to investigate the OMG's criminal activities, it must close the Type 3 Assessment and open a Type 1 & 2 Assessment or a Predicated Investigation on the particular OMG (depending upon the level of predication developed). (U//FOUO) Response: If the Type 3 Assessment was opened to determine whether any outlaw motorcycle gangs were operating within the AOR (rather than to determine whether the specific OMG was operating), and discovers a particular OMG is involved in Version Dated: October 15, 2011 5-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 criminal activities, the field office would be required to open a Type 1 & 2 Assessment or a Predicated Investigation on that identified particular OMG (depending upon the level of predication). In this scenario, the Type 3 Assessment could remain open, however, to determine whether any other OMGs pose a threat within the domain. 5.6.3.2.8.5 (U) EXAMPLE 5 (U/FOUO) Scenario: The annual North American International Auto Show (NAIAS) will take place in a local field office AOR. This event will attract individuals from all over the world. The field office needs to assess whether the special event itself may be a target or victim of Federal criminal violations or national security threats and to what extent other entities within the AOR may be exposed to such crimes or threats. (U//FOUO) Response: To determine whether the event may be a target of or vulnerable to a terrorist attack, a Type 3 Assessment may be opened. If there is adequate information regarding a particular person or group of persons posing a threat to this event, then a Type 1& 2 Assessment or a Predicated Investigation can also be opened on that specific person or group. 5.6.3.3 (U) TYPE 4 ASSESSMENTS (U) Type 4 Assessment defined: Obtain and retain information to inform or facilitate intelligence analysis and planning. [AGG-Dom, Part IV] (U//FOUO) A Type 4 Assessment may be opened to obtain information that informs or facilitates the FBI's intelligence analysis and planning functions. The authorized purpose and clearly defined objective(s) of a Type 4 Assessment must be based on, or related to, the need to collect or acquire information for current or future intelligence analysis and planning purposes. An Assessment under this section, oftentimes referred to as a "domain Assessment," may lead to the identification of intelligence gaps, the development of FBI collection requirements, or the opening of new Assessments or Predicated Investigations. (U//FOUO) A Type 4 Assessment is not threat specific; threat-based Assessments are opened and governed by DIOG Section 5.6.3.2 (Type 3 Assessment). While no particular factual predication is required for a Type 4 Assessment, the Assessment cannot be based solely on the exercise of First Amendment protected activities or on race, ethnicity, national origin or religion, or a combination of only such factors. (U//FOUO) Whenever a Type 4 Assessment identifies and begins to focus on specific individual(s), group(s), or organization(s), whose activities may constitute a violation of Federal criminal law or a threat to the national security, a separate Type 1 & 2 Assessment or a Predicated Investigation must be opened. Similarly, if a Type 4 Assessment identifies a particular national security or criminal threat within the AOR, or identifies victims or targets within an AOR who are vulnerable to any actual or potential threat, a separate Type 3 Assessment or Predicated Investigation must be opened. (U//FOUO) A Type 4 Assessment may not be used for the purpose of collecting positive foreign intelligence (PFI), although such intelligence may be incidentally collected. Positive 5-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Ddto:d October L 'i, LO11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 foreign intelligence can only be intentionally collected pursuant to DIOG Sections 5.6.3.5 (Type 6 Assessment) and/or Section 9. (U//FOUO) See Section 5.11 below for intelligence collection, (i.e., incidental collection) and documentation requirements. All incidental collection must be documented in the 8151 field office file. 5.6.3.3.1 (U) DURATION (U//FOUO) A Type 4 Assessment may only be opened with prior supervisor approval. The effective date of the Assessment is the date the final approval authority approves the EC as specified in Section 5.6.2 above . A Type 4 Assessment may continue for as long as necessary to achieve its authorized purpose and clearly defined objective(s). Although a Type 4 Assessment is not limited in duration, when the clearly defined objective(s) have been met, the Assessment must be closed with an EC approved by the supervisor. 5.6.3.3.2 (U) DOCUMENTATION (U//FOUO) The title/caption of the opening EC must contain the word "Assessment," and the synopsis must identify the authorized purpose and the clearly defined objective(s) of the Assessment. If appropriate, the Details section of the EC may provide more details regarding the authorized purpose and clearly defined objective(s). If additional objectives arise during the course of the Assessment, they must be documented with an EC and approved by the supervisor. If at the time of the opening , or at anytime thereafter, the Assessment involves a sensitive investigative matter, the title/caption must contain the words "Assessment" and "Sensitive Investigative Matter." (U//FOUO) Additionally , ifDIOG Section 18 requires documentation of the approval to use an authorized investigative method in an Assessment , such requests , as well as all uses of those methods, must be documented by an EC. (U//FOUO) This type of Assessment must be documented in the appropriate 818A through F or 8 l 5H classification file. The DIOG prohibits the use of control files or administrative files to document investigative activity . (See DIOG Appendix J) 5.6.3.3.3 (U) APPROVAL (U//FOUO) All Type 4 Assessments must be approved in advance by a supervisor and opened by an EC. Notwithstanding any other provision in the DIOG, a Type 4 Assessment cannot be opened based on oral approval. The supervisor must approve a Type 4 Assessment in accordance with the standards discussed in DlOG Section 5.5. Additional approval requirements apply to SIMs, as described below . 5.6.3.3.4 (U) SENSITIVE INVEST/GA TIVE MATTERS (SIM) (U//FOUO) If the Assessment involves a sensitive investigative matter (SIM), the CDC must review and the SAC must approve the Assessment prior to opening. If a SIM arises after the opening of a Type 4 Assessment , Assessment activity may continue, but the matter must be Vers10n Dated. October 15, 2011 5-18 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 documented in an EC reviewed by the CDC and approved by the SAC as soon as practicable, but not more than five (5) business days after the SIM arises. The term "sensitive investigative matter" is defined in DIOG Section 5.7 and Section 10. 5.6.3.3.5 (U)NOTICE (U//FOUO) There is no requirement to provide notice to FBIHQ or DOJ of opening or closing Type 4 Assessments. 5.6.3.3.6 (U) FILE REVIEW (U//FOUO) A Type 4 Assessment requires file reviews in accordance with DIOG Section 3.4.4. 5.6.3.3.7 (U) RESPONSIBLE ENTITY (U//FOUO) A Type 4 Assessment may only be opened by the DI, field office FIGs or Regional Intelligence Groups (RIG) . 5. 6.3.3.8 5.6.3.3.8.1 (U) EXAMPLES OF TYPE 4 ASSESSMENTS (U) EXAMPLE 1 (U/FOUO) Scenario : A field office wishes to acquire the following information/data from public records /sources in order to increase its knowledge of its domain so that it can prepare intelligence reports regarding threats: (i) general demographics (e.g., general population to include concentrations of racial and ethnic groups); (ii) physical location of facilities of interest (e.g., hospitals , media outlets , sports arenas , schools, religious facilities , manufacturing facilities, etc.); (iii) types and location of critical infrastructure facilities (e.g., dams , power plants , airports , ports); and (iv) location of military installations and defense contractors. After acquiring this information /data, the field office may store, analyze , map, and share the information as appropriate. All of the information/data can be obtained from public records /sources available to the public, as well as the FBI , by methods authorized before opening an Assessment. (See DIOG Section 5.1.1) (U//FOUO) Response: Because this information may be obtained from public sources by methods authorized before opening an Assessment as described in DIOG Section 5 .1.1, the field office is not required to open a Type 4 Assessment. It may do so, however, if it wishes. 5.6.3.3.8.2 (U) EXAMPLE 2 (U/FOUO) Scenario : Same facts as in example #1 above except the field office needs information about (i) demographics ; (ii) criminal activity reports showing the location of certain criminal gang activities; and (iii) information solely in the possession of the Department of Defense (e.g., the location of defense contractors). 5-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (U//FOUO) Response: If the information sought from state and local authorities already exists and the information about the location of defense contractors is available in a DOD database, it is not necessary to open a Type 4 Assessment to obtain it. (See DIOG Section 5.1.1) A request of a state or local agency for demographic or criminal activity information which does not exist at the time of the request (and would, therefore, not be considered historical) or a request of DOD for a defense contractor report which had not yet been prepared would require the opening of a Type 4 Assessment. 5.6.3.3.8.3 (U) EXAMPLE 3 (U/FOUO) Scenario: A field office wishes to collect information about population demographics within its domain in order to have a better understanding of the composition of the community, the different ethnic groups, religious affiliations, community interests and dynamics, businesses, etc. for analysis and planning. (U//FOUO) Response: In order to obtain this information for analysis and planning, the field office FIG must open a Type 4 Assessment to determine the demographics and population. The field office may: (i) obtain public information; (ii) search/obtain records and information from FBI/DOJ; (iii) search/obtain records or information from other Federal, state, local, tribal or foreign agencies (e.g., 1-94 Data, Visa Applications, etc.); (iv) interview identified sources, and liaison contacts; and (v) search on-line services and resources (i.e., commercial databases to identify businesses, organizations, and institutions of interest). 5.6.3.3.8.4 (U) EXAMPLE 4 (U/FOUO) Scenario: A field office wishes to gather information pertaining to critical national assets, research facilities, universities, places of worship, bridges, dams, historic buildings and monuments, government facilities, significant private sector facilities, etc., to map the data, in order to better understand key infrastructure components within its AOR. (U//FOUO) Response: In order to obtain this information for analysis and planning, the field office FIG would need to open a Type 4 Assessment because it would require the use of investigative methods described in Section 18. The field office FIG may store, analyze, map, and share the information as set forth in DIOG Sections 12, 14, and 15. 5.6.3.4 (U) TYPE 5 ASSESSMENTS (U) Type 5 Assessment defined: Seek information to identify potential human sources, assess their suitability, credibility, or value of individuals as human sources. (U//FOUO) A Type 5 Assessment provides the authority and a mechanism to identify, evaluate and recruit a Potential Confidential Human Source (CHS) prior to opening and operating them as a CHS in DELTA. A Type 5 Assessment is not a prerequisite to opening an individual as an operational CHS in DELTA if the necessary information for opening has been obtained through other methods (e.g., following arrest, an individual agrees to become as CHS). Version Dated: October 15, 2011 5-20 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (U//FOUO) A Type 5 Assessment may be opened: A) (U//FOUO) on a specific named individual who is a potential CHS; or B) (U//FOUO) without a specific named individual, if the goal is to identify individuals with placement and access to particular information. (U//FOUO) A Type 5 Assessment may not be opened on a subject of a Predicated Investigation. A previously opened CHS cannot be opened as a Type 5 Assessment. (U//FOUO) Type 5 Assessment activities may not be based solely on race, ethnicity, national origin, religion, or activities protected by the First Amendment, or a combination of only such factors. (U//FOUO) There are three phases of a Type 5 Assessment. The phases are: (1) Identification Phase, (2) Evaluation Phase, and (3) Recruitment Phase. A Type 5 Assessment opened on a specific named individual may only use the Evaluation and Recruitment phases as described below. A Type 5 Assessment opened without a specific named individual is limited to the Identification Phase only. Once the Identification Phase has succeeded in identifying specific individuals who might have appropriate placement and access, the FBI employee must open a new separate Type 5 Assessment on any individual the employee wishes to further evaluate and possibly recruit as a CHS. The original Type 5 Assessment without a specific named individual may remain open in the Identification Phase, if the authorized purpose and clearly defined objective(s) still exist. 5.6.3.4.1 5.6.3.4.1.1 (U) PHASES OF TYPE 5 ASSESSMENTS (U//FOUO) IDENTIFICATION PHASE (U//FOUO) This phase may be used by an SA assigned to either a HUMINT or investigative squad or by an IA assigned to the field office or FBIHQ to identify potential CHSs who seem likely to have placement and access to information or intelligence related to criminal or national security threats, investigations, or collection requirements without naming a specific individual. The goal of this phase is to identify individuals with CHS potential, who may then be evaluated and recruited under the Evaluation and Recruitment Phases of a Type 5 Assessment. (U//FOUO) This phase is initiated with the approval of a CHS identification plan. The plan, which must be based on a thorough review of available intelligence regarding the threat, investigation or collection requirement at issue, must specify characteristics of individuals likely to have CHS potential, and the investigative methods (e.g., database searches, surveillance of specific locations, attendance at specific events) that will be used to identify individuals with those characteristics. Selection of characteristics /search criteria must have a logical connection to intelligence or known facts, and may not be based merely on conjecture. In addition, selected characteristics may not be based solely on race, ethnicity, national origin, religion or activities protected under the First Amendment or a combination of only such factors. See DIOG Section 4 for further explanation on the permissible use of race, ethnic identity or activities protected under the First Amendment. The investigative methods that may be used to identify individuals 5-21 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers10r Dated: October 1:;, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 with the specified characteristics needed must also be based on existing intelligence and be reasonably likely to yield individuals with the specified characteristics. (U//FOUO) If necessary, after a CHS identification plan has been approved, and a group of individuals who potentially have placement and access to the relevant information have been identified, the SA or IA may , with authorization set forth in Section 5.6.3.4.8, use additional characteristics to narrow the group of individuals to those most likely to have the desired placement and access . (U//FOUO) Once an SA or IA has narrowed the field to one or more known persons who appear to have potential as CHSs, in order to gather additional information regarding background and authenticity or, in order for an SA to undertake efforts to recruit the individual, a Type 5 Assessment must be opened on the specific named individual(s) in accordance with subsection 5.6.3.4.1.2, below. 5.6.3.4.1.2 (U//FOUO) EVALUATION PHASE (U//FOUO) This phase may be used by an SA assigned to either a HUMINT or investigative squad or by an IA assigned to the field office or FBIHQ to evaluate a known individual believed to have placement and access so that the individual, if successfully recruited, can provide the FBI with information of value. The goal of this phase of a Type 5 Assessment is to gather information , through the use of the investigative methods set forth in Section 8, below regarding background , authenticity , and suitability of a particular Potential CHS (specific named individual) . An IA who develops information during this phase that indicates a Potential CHS is worthy of recruitment should prepare a Source Identification Package (SIP) for use by an SA on the appropriate HUMINT or investigative squad to recruit the individual. If information developed during this phase indicates the individual should not be recruited as a CHS , the Type 5 Assessment must be closed. 5.6.3.4.1.3 (U//FOUO) RECRUITMENT PHASE (U//FOUO) This phase may only be used by an SA assigned to a HUMINT or investigative squad. The goal of this phase of a Type 5 Assessment is to recruit the potential CHS to become an operational CHS, and therefore , the recruitment phase may focus only on a specific named individual. Information from a SIP or other information/intelligence available to the SA may be used during the recruitment phase. If the recruitment is successful , the Type 5 Assessment must be closed (See Section 5.6.3.4.9 , below) and the individual opened as a CHS in DELTA. The Type 5 Assessment must also be closed if the recruitment is not successful , either because the individual declines to become a CHS or a determination is made not to continue the recruitment. 5.6.3.4.2 (U) DURATION (U//FOUO) The effective date of a Type 5 Assessment is the date the highest level of authority required approves the opening EC (or successor form in DELTA) . A Type 5 Assessment may continue for as long as necessary to achieve its authorized purpose and Version Dated: October 15, 2011 5-22 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 clearly defined objective(s) as set forth in the three phases above or when it is determined that the individual named subject cannot or should not be recruited as a CHS. 5.6.3.4.3 5.6.3.4.3.1 [U) DOCUMENTATION (U//FOUO) IDENTIFICATION PHASE (U//FOUO) The title of the EC (or successor form in DELTA) must read: "Type 5 Assessment, CHS Identification Plan," and contain the number of the appropriate 801 R through 807R or 815R file. These sub-files are restricted and consist of numerical classifications corresponding to specific investigative programs. The synopsis must state the authorized purpose and clearly defined objective(s). If at the time of the opening, or at anytime thereafter, the Assessment involves a sensitive investigative matter, the title/caption must also contain the words "Sensitive Investigative Matter." The Details section must outline the operational plan, including the following information: A) (U//FOUO) The particular placement and access to information that the FBI is seeking, why the FBI is seeking a person with such placement and access, and the file number and title of the Assessment or Predicated Investigation the Type 5 Assessment will support. (U//FOUO) Example: The FBI is seeking a CHS with access to the leadership of the local chapter of the motorcycle gang "Heaven's Devils." The field office has a Type 3 Assessment open to assess the threat from Heaven's Devils but has no human source penetration to assist that Assessment. B) (U//FOUO) Characteristics /search criteria intended to be used to generate the pool of individuals who might have appropriate placement and access, and the basis for selecting the particular characteristics /search criteria. There must be an articulated reason to believe the characteristics /search criteria will yield individuals likely to have the desired placement and access, and the characteristics /search criteria may not be based solely on race, ethnicity, national origin, religion or activities protected under the First Amendment or a combination of only such factors. (U//FOUO) Example: Existing intelligence regarding Heaven's Devils indicates most members are 30 to 55 years old, male, have visible "Heaven's Devils" tattoos, ride Vespa motorcycles and prefer wine bars as gathering places. A significant percentage of members have a criminal record , typically for possession of user quantities of controlled substances. Accordingly, the CHS identification plan includes identifying middle-aged males who are registered owners of Vespa motorcycles and who have a criminal record. The identification plan also includes ascertaining the social gathering places for local members. C) (U//FOUO) The investigative methods (e.g., database searches, website monitoring, surveillance of physical locations, attendance at particular events) the IA or SA anticipates using to find individuals and an explanation why these investigative methods are expected to yield persons who are likely to have the needed placement and access. (U//FOUO) Example: An IA develops a plan to search and monitor specific social networking sites known to be used by Heaven's Devils members as a means of identifying members, associates, and contacts who may have value as CHSs. An SA develops a plan to visit local establishments at which Heaven's Devils' members are believed to frequent in order to observe and interact with patrons and staff who may have value as CHSs, or to attend a local 5-23 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vrr~ion Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 motorcycle expo at which Heaven's Devils' members and vendors are known to patronize or likely to attend. (U//FOUO) If a Type 5 Assessment has already been opened and an IA or SA wishes to utilize additional characteristics /search criteria or investigative methods in the Identification Phase that were not documented in the opening EC , the additional characteristics /search criteria and/or investigative methods must be documented by EC (or successor form in DELTA). The title must read: "Type 5 Assessment; Modification of CHS Identification Plan." The Details section of the EC must include the additional characteristics /search criteria or investigative methods intended to be used to generate the pool of individuals who might have appropriate placement and access . The EC must also explain the basis for selecting the additional characteristics /search criteria or investigative methods. Selected characteristics /search criteria or investigative methods may not be based solely on race, ethnicity, national origin, religion, or activities protected under the First Amendment or a combination of only such factors. 5.6.3.4.3.2 (U//FOUO) EVALUATION/RECRUITMENT PHASES (U//FOUO) A Type 5 Assessment opened to evaluate and/or recruit a specific person as a CHS must be opened with an EC (or successor form in DELTA) using the appropriate 801R-807R or 815R file. The 801R-807R or 815R files are restricted files consisting of numerical classifications corresponding to specific investigative programs. The title /caption of the EC must contain the name of the potential CHS and the words "Type 5 Assessment." The synopsis must state the authorized purpose and clearly defined objective(s). The Details section of the EC must provide the facts that indicate the individual has placement and access to information or intelligence related to criminal or national security threats, investigations, or collection requirements, to include the following: A) (U//FOUO) The file classification of the Assessment or Predicated Investigation the potential CHS may be able to support; B) (U//FOUO) The Potential CHS ' s date of birth and other available biographical data; and C) (U//FOUO) The information to which the person is believed to have placement and access and why such a CHS would be of value to the FBI. 5.6.3.4.4 (U) APPROVAL (U//FOUO) A Type 5 Assessment must be approved by the appropriate supervisor and opened with an EC (or successor form in DELTA). Notwithstanding any other provision in the DIOG, a Type 5 Assessment cannot be opened on oral approval. For SAs, a Type 5 Assessment must be approved by their SSA. For IAs, a Type 5 Assessment must be approved by the SIA and the SSA on the HUMINT or investigative squad that will potentially recruit the individual. An SSA and/or SIA must use the standards provided in DIOG Section 5.5 when deciding whether to approve a Type 5 Assessment. Additional approval requirements apply to Sensitive Potential CHSs, as described below. Ver'i10n D 1 d Ottober 1r;, 20 11 5-24 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5.6.3.4.4.1 §5 (U//FOUO) SENSITIVE POTENTIAL CHSs AND GROUPS (U//FOUO) CDC review and SAC approval is required before a Type 5 Assessment may be opened on a Sensitive Potential CHS or if, during the Identification Phase, a sensitive characteristic is at least one aspect being used to identify individuals with potential placement and access to information of interest. If it is determined after opening a Type 5 Assessment that a Potential CHS is Sensitive or that a sensitive characteristic must be added to the Potential CHS Identification Plan, the Assessment activity may continue, but the matter must be documented in an EC (or a successor form in DELTA) and reviewed by the CDC and approved by the SAC as soon as practicable, but not more than 5 business days of this determination. A Sensitive Potential CHS or sensitive characteristic (as part of an Identification Plan) is defined as follows: A) (U//FOUO) A domestic public official (other than a member of the U.S. Congress or White House Staff - which requires higher approval authority , see CHSPG for additional details); B) (U//FOUO) A domestic political candidate; C) (U//FOUO) An individual prominent within a religious organization ; D) (U//FOUO) An individual prominent within a domestic political organization; E) (U//FOUO) A member of the news media; or F) (U//FOUO) A member of the faculty or the administration of a college or university in the United States. (U//FOUO) DIOG Section 10 should be consulted for a definition of these terms . (U//FOUO) For additional information regarding Sensitive Potential CHSs, see CHSPG , Part 2, & DIOG Section 18.5.3. 5.6.3.4.5 (U)NOTICE (U//FOUO) There is no requirement to provide notice to FBIHQ or DOJ of opening or closing Type 5 Assessments. 5.6.3.4.6 (U) FILE REVIEW /FOUO) A supervisory file review must be conducted every 90 days (60 days for ""robationary employees). In addition to the requirements of section 3.4.4.9, the purpose of the - ie review is to determine the following: T A) (U//FOUO) Whether authorized investigative methods have been used properly in all phases of the Assessment; B) (U//FOUO) Whether, in the Identification Phase, the Assessment has successfully narrowed the field to a group of individuals who are likely to have appropriate placement and access ; C) (U//FOUO) Whether reimbursable expenses incurred by an SA, if any , were reasonable, properly authorized, and properly documented ; D) (U//FOUO) Whether the Potential CHS was tasked to provide information or paid for his/her servi ces or expenses (activities which are not permitted prior to opening the person as a CHS) ; 5-25 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers10n Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 E) (U//FOUO) Whether there is a reasonable likelihood the Potential CHS can and should be recruited or, if the Assessment is in the Identification Phase , the plan has a reasonable likelihood of generating a group of Potential CHSs ; and F) (U//FOUO) Whether the Type 5 Assessment should continue for an additional 90 days (60 days for probationary employees) . If continuation is justified , SWSSA must document the rationale for keeping the Type 5 Assessment open . 5.6.3.4.7 (U) RESPONSIBLE ENTITY (U//FOUO) A Type 5 Assessment without a specific named individual may be opened by SAs on HUMINT squads or IAs assigned the field office FIG or to FBIHQ . A Type 5 Assessment on specific named individual may be opened by SAs on HUMINT or investigative squads , and by IAs assigned to the field office FIG, investigative squads, or to FBIHQ . 5.6.3.4.B (U) AUTHORIZED INVESTIGATIVE METHODS IN TYPE 5 ASSESSMENTS (U//FOUO) Only the following investigative methods may be used in a Type 5 Assessment, whether in the identification, evaluation, or recruitment phase . All of these investigative methods may be used by SAs . IA's may only use investigative methods (A) through (E) . A) (U//FOUO) Public information ; B) (U//FOUO) Records or information - FBI and DOJ ; C) (U//FOUO) Records or information - Other Federal, state, local, tribal, or foreign government agencies; D) (U//FOUO) On-line services and resources; E) (U//FOUO) Information voluntarily provided by governmental or private entities; F) (U//FOUO) Use of AFID - with certain approvals required (see CHSPG); G) (U//FOUO) CHS use and recruitment ; H) (U//FOUO) Interview or request information from the public or private entities; I) (U//FOUO) Physical surveillance (not requiring a court order); J) (U//FOUO) Polygraph examinations (see CHSPG) ; and K) (U//FOUO) Trash Covers (Searches that do not require a warrant or court order). (U//FOUO) Note: Consent Searches are authorized in Assessments. 5 (U//FOUO) Some investigative methods used during Assessments that may require higher supervisory approval are set forth in DIOG Section 18.5. (U//FOUO) In addition, as specified in division PGs , there may be agreements (e.g., Memoranda of Understanding , etc.) that require additional coordination and approval prior to conducting certain activities. 5 (U//FOUO) The DOJ has opined that Consent Searches are authorized in Assessments , as well as in Predicated Investigations. Version Dated: October 15, 2011 5-26 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (U//FOUO) IfDIOG Section 18 requires documentation of the request or the approval to use an authorized investigative method, the request and approval must be documented with an EC (or the successor form in DELTA). 5.6.3.4.9 (U) CLOSING TYPE 5 ASSESSMENTS (U//FOUO) A Type 5 Assessment must be closed with SIA and SSA approval if it was opened by an IA; or with SSA approval if it was opened by an SA, when: A) (U//FOUO) In a Type 5 Assessment opened without a specific named individual, it is determined that the characteristics/search criteria used to identify individuals with placement and access to needed information have not succeeded in identifying such individuals, or the FBI no longer has a need for a CHS with the specified placement and access; B) (U//FOUO) The Identification Phase has succeeded in identifying specific named individuals who might have appropriate placement and access. If the FBI wishes to further evaluate and possibly recruit any such identified individuals, a separate Type 5 Assessment must be opened on that person. The original Type 5 Assessment may remain open in the identification phase if the authorized purpose and clearly defined objective still exist; C) (U//FOUO) In a Type 5 Assessment opened on a specific named individual, it is determined that the Potential CHS is not a suitable candidate for further evaluation and/or recruitment efforts; D) (U//FOUO) In a Type 5 Assessment opened on a specific named individual, SA recruitment efforts are successful and the potential CHS has been opened as a CHS in DELTA; or E) (U//FOUO) In a Type 5 Assessment opened on a specific named individual, SA efforts to recruit the potential CHS have been unsuccessful or it is determined that further recruitment efforts are not likely to be successful. 5. 6.3.4.10 5.6.3.4.10.1 (U) EXAMPLES OF TYPE 5 ASSESSMENTS (U//FOUO) EXAMPLES OF A TYPE 5 ASSESSMENT OPENED WITHOUT A SPECIFIC NAMED INDIVIDUAL (U//FOUO) Example A: A field office has a Type 3 Assessment open on the potential terrorist threat from country Y. Through the Type 3 Assessment, the office has determined that it has no CHSs with placement or access to the sizeable country Y emigre population in the AOR. An IA assigned to the FIG has been assigned to identify persons with placement and access to potential terrorist sympathizers. (U//FOUO) Response A: The IA's assignment is to locate potential CHSs within the AOR who would be in a position to provide information or intelligence regarding threats that might be coming from country Y. A Type 5 Assessment may not be opened solely to locate and identify Country Y's emigre population within the AOR because such an Assessment would be based solely on the group's national origin. However, existing intelligence indicates that the known terrorists from country Y are male, between the ages 15-20, have attended or presently attend American universities, travel to country Y several times a year and fly into rural airport Z when they travel to country Y. The IA determines that the aforementioned characteristics are likely to yield persons with 5-27 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versio'1 Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 placement and access to information or intelligence related to the Type 3 Assessment. The IA opens a Type 5 Assessment without an identified subject titled "Type 5 Assessment: CHS Identification Plan." The EC must set forth the characteristics/search criteria selected for identifying potential CHSs and the basis for selecting those characteristics/search criteria. The IA must also specify the investigative methods he/she plans to use to identify potential CHSs from this group, such as databases the IA will query to find individuals with the identified characteristics. After the results of the various queries are correlated, the IA identifies several individuals who may have the desired placement and access. The IA must open separate Type 5 Assessment on each of these identified individuals in accordance with sub-section 5.6.3.4.3.1 above, to further evaluate their potential as CHSs. (U//FOUO) Example B: A field office has opened a Type 3 Assessment on the recent infiltration in the AOR of a new street gang identified through IIRs submitted by neighboring field offices. A HUMINT SA is assigned to develop CHSs to provide information regarding the gang's structure, leadership, members, illegal activities, communications and recruitment strategies, etc. (U//FOUO) Response B: Existing intelligence reflects that members of this gang have been known to wear clothing of specified colors, have identifiable graffiti, and use bowling alleys and certain ethnic restaurants as gathering places. Because the SA's primary focus is on CHS development, he/she must open a Type 5 Assessment without a specific named individual titled "Type 5 Assessment: CHS Identification Plan." The EC sets forth these identifiable characteristics and the investigative methods the SA plans to use, the basis for their selection and the locations where he/she plans to interact with such individuals. Through the use of authorized investigative methods set forth in subsection 5.6.3.4.8 above, the SA identifies one individual whom the SA believes has the desired placement and access to gang members and whom the SA believes may, in time, be willing to cooperate . The SA opens a Type 5 Assessment on this specific named individual in accordance with Section A, above, to more fully evaluate him/her and initiate recruitment. 5.6.3.4.10.2 (U//FOUO) EXAMPLES OF TYPE 5 ASSESSMENTS OPENED ON SPECIFIC NAMED POTENTIAL CHSs (U/FOUO) Example A: A field office identifies an emerging threat suggesting that La Cosa Nostra ("LCN") might be moving into its territory. An IA on the FIG opens a Type 3 Assessment authorizing collection regarding the potential threat posed by LCN to the field office AOR. During the Assessment, the IA learns that a specific individual, who appears to periodically associate with persons who are suspected of being members or associates of LCN, filed for bankruptcy. Intelligence suggests that this person is desperate for money, does not appear to be involved with suspected LCN criminal activities, and may be willing to cooperate with the government. (U//FOUO) Response A: A Type 5 Assessment may be opened on the specific named individual to evaluate his/her potential to become a CHS. Because this Assessment is being opened by an IA on the FIG, it must be approved by the IA's SIA and an SSA on Version Dated: October 15, 2011 5-28 UNCLASSIFIED - FOR OFFICIAL USE ONLY ........_~ IIL- .u' .a' ----------~-~~=~f ~ess (na( wou[c{ 6e of value, be- r:h~ _ _,.,..J-.,<...:. •-,,c s<:7./~ w~r<...:. c::,_pe:, a_p_p .r-o vI:Og .1."J~d b_y D.I~ au/bo./.7?.:,J--:../ .// = "ZTL7.L7..c;?£7.a?_/7A?d"J'c'd?J?/d?c' p"c'/Y0/7DaSf7U/Cemen(an(f the Type 5 Assessment must be 1:r"' ~"'"=rr =c1 ' =·-"·=----·- ·· · .... ~ust. be roi;~;~~~d ~JDELT A~lf th~ .r?~~~it~~~{t~ ~~t~~c~-;~ful, '. ·eo. \'l1)~n Dn a group 01 from country X be)ievco to be targeting engineers and 6.ig.6.-tecnworkers in the production of semiconductor chips. Evidence in the Full Investigation -:::gests th.at the i..udlvi..du.al'i':. TI()m.(:.()u.~\~ X ~--~ ~'-'.~m.\)\.\.w~ \() -.'<:.(:.'-').\.\.\\\._'<:.'<:.\.\.~~ o.\.\.~ - :. -- ~- -_ - = ~~·aie,rn~ ~~ -~~~\"\."E,'b.\."\.'\:>"l\, 'a"l\ 1\'))~'C)'\Jb) Response B: Information b _ cl. t -<=- c::.l ~t..~.............-.•..,.c:. ........,.1..,,.eot.\..,,.~r ~~~~'b""-""""S:C.~~~~"b~'-~'- r th~ investigation or a potential CHS. If the engineer is determined to be a subject of the Full Investigation, a Type 5 Assessment may not be opened and the engineer needs to be opened as the target of a Full Investigation. If the primary focus of the FBI' s interest is to determine whether the individual may be a potential source, a Type 5 Assessment should be opened to collect information necessary to determine whether the FBI should attempt to recruit the engineer as a CHS. • FOU O) If the Assessment is opened by an SA: The SA may open a Type 5 Assessment - · /her SSA approval. If the recruitment is successful, the Type 5 Assessment must be en the CHS is opened in DELTA. If the recruitment is unsuccessful, the Type 5 .::..=~~:;>m·must be closed. I the Assessment is opened by an IA: The IA must obtain the approval of his/her --e uperv isor of the relevant investigative or HUMINT squad to open a Type 5 - -=~ t. 1 ote : An IA may not open an individual as a CHS in DELTA.) If the . · -sessment determines the person has placement and access to information or intelligence that would be of value, the Type 5 Assessment must be transferred to the appropriate investigative squad or the HUMINT squad to further evaluate and recruit the potential CHS. 5.6.3.5 (U) TYPE 6 ASSESSMENTS (U) Type 6 Assessment defined: Seek information, proactively or in response to investigative leads, relating to matters of foreign intelligence interest responsive to foreign intelligence requirements. (U//FOUO) A Type 6 Assessment is designed to allow the FBI to determine whether the circumstances within a field office's territory would enable the office to conduct a Full Investigation to collect information responsive to a Positive Foreign Intelligence (PFI) requirement. PFI requirements are described in DIOG Section 9.1. A Type 6 Assessment 5-29 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver~ion Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 the appropriate investigative or HUMINT squad. (If the Assessment were opened by an SA on an investigative squad, then his/her SSA would be the sole approving authority .) If the IA determines during the identification phase that the person has placement and access that would be of value, the Type 5 Assessment must be transferred to the appropriate HUMINT or investigative squad to further evaluate and recruit the potential CHS. If the recruitment is successful, the Type 5 Assessment must be closed when the CHS is opened in DELTA. If the recruitment is unsuccessful, the Assessment must be closed. (U/FOUO) Example B: A field office has a Full Investigation open on a group of individuals from country X believed to be targeting engineers and high-tech workers involved in the production of semiconductor chips. Evidence in the Full Investigation suggests that the individuals from country X are attempting to recruit the engineers and high tech workers to steal information regarding the semiconductor chips in exchange for money. During the investigation, an engineer who travels frequently to country X has been identified. (U//FOUO) Response B: Information developed during the Predicated Investigation may be used to determine whether the engineer should be viewed as a subject of the investigation or a potential CHS. If the engineer is determined to be a subject of the Full Investigation, a Type 5 Assessment may not be opened and the engineer needs to be opened as the target of a Full Investigation. If the primary focus of the FBI' s interest is to determine whether the individual may be a potential source, a Type 5 Assessment should be opened to collect information necessary to determine whether the FBI should attempt to recruit the engineer as a CHS. (U//FOUO) Jfthe Assessment is opened by an SA: The SA may open a Type 5 Assessment with his/her SSA approval. If the recruitment is successful, the Type 5 Assessment must be closed when the CHS is opened in DELTA. If the recruitment is unsuccessful, the Type 5 Assessment must be closed. (U//FOUO) If the Assessment is opened by an IA: The IA must obtain the approval of his/her SIA and the supervisor of the relevant investigative or HUMINT squad to open a Type 5 Assessment. (Note: An IA may not open an individual as a CHS in DELTA.) If the Assessment determines the person has placement and access to information or intelligence that would be of value, the Type 5 Assessment must be transferred to the appropriate investigative squad or the HUMINT squad to further evaluate and recruit the potential CHS. 5.6.3.5 (U) TYPE 6 ASSESSMENTS Type 6 Assessment defined: Seek information, proactively or in response to investigative leads, relating to matters of foreign intelligence interest responsive to foreign intelligence requirements. U. /FOUO) A Type 6 Assessment is designed to allow the FBI to determine whether the ~ircumstances within a field office's territory would enable the office to conduct a Full :nv estigation to collect information responsive to a Positive Foreign Intelligence (PFI) requirement. PFI requirements are described in D IOG Section 9 .1. A Type 6 Assessment 5-29 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 focuses on a field office's capability to collect on those PFI requirements. While no particular factual predication is required, the basis of the Assessment cannot be arbitrary or groundless speculation, nor can the Assessment be based solely on the exercise of First Amendment protected activities or on race, ethnicity, national origin or religion, or a combination of only those factors. (U//FOUO) Foreign Intelligence is "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons." The FBI defines a PFI requirement as a collection requirement issued by the USIC and is accepted by the FBI DI that seeks to collect information outside the FBI's core national security mission. (U//FOUO) FBI employees must prioritize collection in response to FBI national collection requirements before attempting to collect against a positive foreign intelligence collection requirement. The IPG furnishes guidance on the prioritization of collection. (U//FOUO) See Section 5 .11 below for intelligence collection, (i.e., incidental collection) and documentation requirements. All incidental collection must be documented in the 8151 field office file. 5.6.3.5.1 (U) DURATION (U//FOUO) There are no time limitations on the duration of a Type 6 Assessment. The effective date of the Assessment is the date on which the DI- Domain Collection and HUMINT Management Section (DCHMS), Domain Collection Program Management Unit (DCPMU), UC approves the EC. See DIOG section 5.6.2 above. A Type 6 Assessment may continue for as long as necessary to achieve its authorized purpose and clearly defined objective(s). Although a Type 6 Assessment is not limited in duration, when the authorized purpose and clearly defined objective(s) have been met, the Assessment must be closed or converted to a Full Investigation with an EC approved by the field office SSA or SIA and the DCPMU UC. When closing a Type 6 Assessment that is designated as a SIM, the SAC and the DCHMS SC must approve the closing EC. 5.6.3.5.2 (U) DOCUMENTATION (U//FOUO) A Type 6 Assessment must be opened by EC, using the appropriate 809-814 or 816 file classification. The title/caption of the opening EC must contain the word "Assessment," and the synopsis must identify the authorized purpose and the clearly defined objective(s) of the Assessment. The authorized purpose and clearly defined objective(s) should be described in more detail in the Details section of the EC. If additional objectives arise during the course of the Assessment, they must also be documented in an EC and approved by the field office SSA or SIA. If at the time of the opening, or at anytime thereafter, the Assessment involves a SIM, the title/caption must contain or be changed to also include the words "Assessment" and "Sensitive Investigative Matter." (U//FOUO) The DIOG prohibits the use of control files or administrative files to document investigative activity. (See DIOG Appendix J) Vers1on Dated: October 15, 2011 5-30 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5.6.3.5.3 §5 (U) APPROVAL (U//FOUO) All Type 6 Assessments must be opened by EC and approved in advance by an SSA or SIA and the appropriate DI UC. A Type 6 Assessment must be approved in accordance with the standards provided in DIOG Section 5.5. Notwithstanding any other provision in the DIOG , a Type 6 Assessment cannot be opened on oral approval. 5.6.3.5.4 (U) SENSITIVE INVEST/GA TIVE MATTERS (SIM) (U//FOUO) If a Type 6 Assessment involves a sensitive investigative matter, the CDC/OGC must review and the SAC and the appropriate DI SC must approve the Assessment prior to opening. If a sensitive investigative matter arises after the opening of a Type 6 Assessment, Assessment activity may continue, but the matter must be reviewed by the CDC and approved by the SAC and the DCHMS SC, as soon as practicable, but not more than five (5) business days after the sensitive investigative matter arises. The term "sensitive investigative matter" is defined in DIOG Section 5.7 and Section 10. 5.6.3.5.5 (U)NOTICE (U//FOUO) FBIHQ authority, as specified above, is required to open a Type 6 Assessment; the opening EC will serve as notice to the DI. There is no requirement to provide notice to DOJ of opening or closing a Type 6 Assessment. 5.6.3.5.6 (U) FILE REVIEW (U//FOUO) A Type 6 Assessment requires file reviews in accordance with DIOG Section 3.4.4. 5.6.3.5.7 (U) RESPONSIBLE ENTITY (U//FOUO) A Type 6 Assessment may only be opened and conducted by the FIG and the DI (Refer to IPG for further details). Under the management of the FIG, field office investigative squads or FBIHQ divisions may support the collection of information in a Type 6 Assessment. 5. 6.3.5.8 5.6.3.5.8.1 (U) EXAMPLES/SCENARIOS OF TYPE 6 ASSESSMENTS (U) EXAMPLE 1 (U/FOUO) Example 1: A field office learns that the exiled leader of the opposition party from a country on the Threat Country List (TCL) is living in the area. The FBI-DI has accepted a USIC collection requirement seeking information about the opposition group's level of influence in the government-controlled oil industry and published it to the FBI as a PFI collection requirement. The FBI's core national security mission does not include domestic politics or infrastructure of the TCL country; however, the field office believes it may be uniquely positioned to collect intelligence on this PFI collection requirement. 5-31 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (U//FOUO) Response: The field office may request the DCPMU to authorize a Type 6 Assessment to proceed with initial activity that will determine whether the field office can, in fact, collect against the published PFI collection requirement. The Type 6 Assessment will allow the field office to use the appropriate investigative methods to determine its collection capabilities related to the PFI collection requirement. If the field office determines that it can collect the foreign intelligence, it should contact the DCPMU for authorization to open a Full PFI Investigation. (Refer to DIOG section 9 and IPG for further details.) 5.6.3.5.8.2 (U) EXAMPLE 2 (U/FOUO) Example 2: A field office identifies a series ofrequirements in a National HUMINT Collection Directive (NHCD) related to a designated international terrorist group known to conduct attacks against U.S. interests. The field office believes that there may be a collection opportunity in its territory and requests the DCPMU to authorize a Type 6 Assessment to permit the field office to evaluate its ability to respond to this NHCD. (U//FOUO) Response: A request to open this Type 6 Assessment would not be approved by the DCPMU. A Type 6 Assessment cannot be opened on the ability to collect intelligence on NHCDs unless those NHCDs have been "accepted" and published by the FBI-DI as PFI collection requirements. In addition, these NHCDs would not be "accepted" by the FBI-DI because the neutralization and investigation of terrorist entities, particularly in the U.S., is part of the FBI's core national security mission, and would not meet the definition of PFI collection requirements. If the field office believes that there may be collection opportunities related to a terrorist group, it should consider opening a Type 3 Assessment to determine whether the group poses a threat in the field office's AOR. 5.7 (U) SENSITIVE INVESTIGATIVE MATTERS (SIM) IN ASSESSMENTS (U//FOUO) The title /caption of the opening or subsequent EC for an Assessment involving a SIM must contain the words "Assessment" and "Sensitive Investigative Matter." DIOG Section 10 contains the required approval authority and factors for consideration when determining whether to open or approve an Assessment involving a SIM. 5.7.1 (U) SIM CATEGORIESIN ASSESSMENTS (U//FOUO) A SIM is an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security), religious or domestic political organization or individual prominent in such an organization, or news media, an academic nexus, or any other matter which, in the judgment of the official authorizing an Assessment, should be brought to the attention of FBIHQ and other DOJ officials. (AGG-Dom, Part VII.N.) As a matter of FBI policy, "judgment" means that the decision of the authorizing official is discretionary. DIOG Section 10 and the DIOG classified Appendix G define domestic public official, domestic political candidate, religious or domestic political organization, or individual prominent in such an organization, news media, and academic nexus. Version Dated: October 15, 2011 5-32 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 (U//FOUO) If at the time of the opening, or at anytime thereafter, an Assessment involves a SIM, the title/caption must contain the words "Assessment" and "Sensitive Investigative Matter." 5.7.2 (U) ACADEMICNEXUS INASSESSMENTS (U//FOUO) As a matter of FBI policy, an investigative activity having an "academic nexus" is considered a SIM if: A) (U//FOUO) the investigative activity involves matters related to the responsibilities of an administrator or faculty member employed by any college or university that is located inside the United States, provided the matter under Assessment is related to the individual's position at the institution; or B) (U//FOUO) the matter involves any student association recognized and approved by the college or university at which the student association at issue is located, and the college or university is located inside the United States. (U//FOUO) The sensitivity related to an academic institution arises from the American tradition of "academic freedom" (e.g., an atmosphere in which students and faculty are free to express unorthodox ideas and views and to challenge conventional thought without fear of repercussion). Academic freedom does not mean, however, that academic institutions are off limits to FBI investigators in pursuit of information or individuals of legitimate investigative interest. (U//FOUO) For matters not considered a SIM even though there is an academic nexus, see the classified provisions in DIOG Appendix G. 5.8 (U) STANDARDSFOROPENINGORAPPROVINGTHE USE OFAN AUTHORIZED INVESTIGATIVE METHOD (U//FOUO) Prior to opening or approving the use of an authorized investigative method, an FBI employee or approving official must determine whether: A) (U//FOUO) The use of the particular investigative method is likely to further the authorized purpose and clearly defined objective(s) of the Assessment; B) (U//FOUO) The investigative method selected is the least intrusive method reasonable based upon the circumstances of the investigation; C) (U//FOUO) The anticipated value of the Assessment justifies the use of the selected investigative method or methods; D) (U//FOUO) If the purpose of the Assessment is to collect positive foreign intelligence, the investigative method complies with the AGG-Dom requirement that the FBI operate openly and consensually with an USPER, to the extent practicable; and E) (U//FOUO) The investigative method is an appropriate use of personnel and financial resources. 5-33 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Deted: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 5.9 5. 9.1 (U) AUTHORIZED INVESTIGATIVE METHODS IN ASSESSMENTS (U) TYPE 1 THROUGH 4 AND TYPE 6 ASSESSMENTS (U//FOUO) A complete discussion of these investigative methods, including approval requirements, is contained in DIOG Section 18. The use or dissemination of information obtained by the use of the below-methods must comply with the AGG-Dom and DIOG Section 14. Only the following investigative methods are authorized in Type 1 through 4 and Type 6 Assessments: A) (U) Public information. (Section 18.5.1) B) (U) Records or information - FBI and DOJ. (Section 18.5.2) C) (U) Records or information - Other federal, state, local, tribal, or foreign government agency. (Section 18.5.3) D) (U) On-line services and resources. (Section 18.5.4) E) (U) CHS use and recruitment. (Section 18.5.5) F) (U) Interview or request information from the public or private entities. (Section 18.5.6) G) (U) Information voluntarily provided by governmental or private entities. (Section 18.5.7) H) (U) Physical Surveillance (not requiring a court order). (Section 18.5.8) I) (U) Grand jury subpoenas - for telephone or electronic mail subscriber information only (only available in a Type 1 & 2 Assessment). (Section 18.5.9) (U//FOUO) Note: Consent Searches are authorized in Assessments. 5.9.2 (U) TYPE 5 ASSESSMENTS (U//FOUO) In addition to those investigative methods listed above in 5.9.l(A)Assessments only may also use the following investigative methods: (H), Type 5 A) (U) Use of AFID - with certain approvals required. (See CHSPG) B) (U) Polygraph Examinations (See CHSPG) C) (U) Trash Covers (Searches that do not require a warrant or court order). (See Section 18.6.12) 5.10 (U) OTHER INVESTIGATIVE METHODS NOT AUTHORIZED DURING ASSESSMENTS (U//FOUO) Additional investigative methods, which are authorized for Predicated Investigations, may not be used in Assessments. 5.11 (U) INTELLIGENCE COLLECTION (I.E., INCIDENTAL COLLECTION) (U//FOUO) Intelligence that is responsive to PFI requirements, FBI national collection requirements, and FBI field office collection requirements may be collected incidental to an Assessment or Predicated Investigation. When information that is responsive to these requirements is incidentally collected in an Assessment or Predicated Investigation, it should be forwarded to the Field Intelligence Group (FIG) for evaluation and potential dissemination Version Dated: October 15, 2011 5-34 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 against collection requirements. (See DIOG Section 15.6.1.2 - Written Intelligence Products) All incidental collection must be documented in the 8151 field office file. (U//FOUO) Prior to submitting to the FIG any information that may be evidentiary and therefore potentially discoverable, the FBI employee should discuss with the CDC or OGC the potential impact disseminating the information in an intelligence product may have on the prosecution of the investigation. To the extent dissemination might or is likely to have an adverse impact on the prosecution, the FBI, in consultation with the prosecuting attorney, must assess whether the need for dissemination outweighs the probable impact the dissemination may have on the prosecution. 5.12 (U) RETENTIONAND DISSEMINATIONOF PRIVACYACT RECORDS (U//FOUO) The Privacy Act restricts the maintenance ofrecords relating to the exercise of First Amendment rights by individuals who are USPERs . Such records may be maintained if the information is pertinent to and within the scope of authorized law enforcement activities or for which there is otherwise statutory authority for the purposes of the Privacy Act (5 U.S.C. § 522a[e][7]). Activities authorized by the AGG-Dom are authorized law enforcement activities. Thus, information concerning the exercise of First Amendment rights by USPERs may be retained if it is pertinent to or relevant to the FBI's law enforcement or national security activity. Relevancy must be determined by the circumstances. If the information is not relevant to the law enforcement activity being conducted, then it may not be retained. For more information see DIOG Section 4.1. (AGG-Dom, Part I.C.5) (U) The Privacy Act, however, may not exempt from disclosure information gathered by the FBI during Positive Foreign Intelligence Assessments (Type 6 Assessments) and investigations of qualified U.S. citizens or lawfully admitted permanent residents if personally identifying :nformation about such persons resides in those files. FBI employees should therefore be particularly vigilant about properly classifying any such information and should avoid unnecessary references to, and the documentation of, identifying information about U.S. citizens and lawfully admitted permanent residents in Positive Foreign Intelligence files. See DIOG ection 4.1.3. • /FOUO) Even if information obtained during an Assessment does not warrant opening a ?:edicate d Investigation , the FBI may retain personally identifying information for criminal and ~ational security purposes. In this context, the information may eventually serve a variety of . alid analytic purposes as pieces of the overall criminal or intelligence picture are developed to .:erect and disrupt criminal and terrorist activities. In addition, such information may assist FBI onnel in responding to questions that may subsequently arise as to the nature and extent of -...e ssessment and its results, whether positive or negative. Furthermore, retention of such --=cmnation about an individual collected in the course of an Assessment will alert other :.. :i ions or field offices considering conducting an Assessment on the same individual that the - -;-ricular individual is not a criminal or national security threat. As such, retaining personally ~entifying information collected in the course of an Assessment will also serve to conserve _: urces and prevent the initiation of unnecessary Assessments and other investigative _ vities. 5-35 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §5 5.12.1 (U) MARKING CLOSED ASSESSMENTS THAT CONTAIN PERSONAL INFORMATION (U) Information obtained during an Assessment that has insufficient value to justify further investigative activity may contain personal information . As a result: (i) when records retained in an Assessment specifically identify an individual or group whose possible involvement in criminal or national security-threatening activity was checked out through the Assessment; and (ii) the Assessment turns up no sufficient basis to justify further investigation of the individual or group, then the records must be clearly annotated as follows: (U) "It is noted that the individual or group identified during the Assessment does not warrant further FBI investigation at this time. Any dissemination of information from this Assessment regarding the individual or group identified must include an appropriate caveat with the shared information. It is recommended that this Assessment be closed." (U) Extreme care should be taken when disseminating personally identifiable information collected during an Assessment that does not lead to sufficient facts to open a Predicated Investigation. If personal information from the Assessment is disseminated outside the FBI according to authorized dissemination guidelines and procedures , it must be accompanied by the required annotation that the Assessment involving this individual or group did not warrant further investigation by the FBI at the time the Assessment was closed . 5.12.1.1 (U) TYPE 1& 2 ASSESSMENTS (U//FOUO) When closing Type 1 & 2 Assessments and uploading to a zero classification file, the above statement will be automatically annotated to the FD- 71 or Guardian record. 5.12.1.2 (U) TYPE 3, 4, AND 6 ASSESSMENTS (U//FOUO) When closing Types 3, 4, and 6 Assessments, the language in 5.12.1 above must be included in the synopsis section of the closing EC. Moreover, any FBI employee who shares information from such a closed Assessment file must ensure the following caveat is included in the dissemination: (U) "This person [or group] was identified during an Assessment but no information was developed at that time that warranted further investigation of the person [or group]." 5.12.1.3 (U) TYPE 5 ASSESSMENTS (U//FOUO) When closing Type 5 Assessments, the language in 5.12.1 above must be included in the synopsis section of the closing EC . Moreover , any FBI employee who shares information from such a closed Assessment file must ensure the following caveat is included in the dissemination: (U) "This person [or group] was identified during an Assessment to identify potential human sources but the person [or group] did not warrant further development as a source at that time." Version Dated: October 15, 2011 5-36 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 5.13 §5 (U) ASSESSMENTFILE RECORDSMANAGEMENTAND RETENTION (U//FOUO) Type 1 & 2 Assessments must be maintained in an applicable zero sub-assessment file (e.g., 91-0-ASSESS-D, 15-0-ASSESS) or unaddressed work file. Zero sub-assessment files exist for all investigative classifications and must be used to store all information acquired during these Assessments . Assessments may not be placed in control files or administrative files . When completing the FD-71 or Guardian lead for an Assessment involving a sensitive investigative matter, the FBI employee must select the option "Sensitive Investigative Matter." Action leads can be set when using a zero sub-assessment file in situations where a prompt checking of information requires action in another division or field office to determine whether a Predicated Investigation is warranted. Records must be retained according to National Archives and Records Administration (NARA) approved disposition authorities. (U//FOUO) Guardian will be used for documenting only those Assessments described in Section 5.6.3.1 regarding international terrorism, domestic terrorism, weapons of mass destruction terrorism, and cyber terrorism. Guardian provides the ability to set action leads. The retention of records in Guardian, or any successor information technology system, must be retained according to NARA-approved disposition authorities. Consult the RMD Help Desk for assistance. (U//FOUO) Type 3, 4, 5, and 6 Assessments must have an opening EC . The title/caption of the opening EC must contain the word "Assessment," and the synopsis must identify the authorized purpose and the clearly defined objective(s) of the Assessment. Assessments may not be placed in control files or administrative files. If at the time of the opening, or at anytime thereafter, the Assessment involves a sensitive investigative matter, the title/caption must also contain the ,vords "Assessment" and "Sensitive Investigative Matter." When the authorized purpose and objective(s) have been met, a closing EC must be approved by the SSA or SIA and uploaded to the file. If additional objectives arise during the Assessment, they must be documented in an EC, approved by the SSA or SIA, and uploaded to the file. Assessment classification files must be retained according to NARA-approved disposition authorities. 5.14 (U) OTHER PROGRAMSPECIFICINVESTIGATIONREQUIREMENTS -C OUO) To facilitate compliance within an existing investigative program, the FBI employee :hou ld consult the relevant division's PG. FBIHQ division PGs, however, may not contradict, ··er or otherwise modify the standards established in the DIOG. 5-37 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October l'..i 201-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 6 6.1 §6 (U) PRELIMINARYINVESTIGATIONS (U) OVERVIEW (U) The AGG-Dom authorizes a second level of investigative activity-Predicated Investigations. Predicated Investigations that concern federal crimes or threats to the national security are subdivided into Preliminary Investigations (PI) and Full Investigations (Full). A Preliminary Investigation may be opened on the basis of any "allegation or information" indicative of possible criminal activity or threats to the national security. 6.2 (U) PURPOSE AND SCOPE (U//FOUO) A Preliminary Investigation may be opened to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security. However, a Preliminary Investigation cannot be opened or used solely for the purpose of collecting against Positive Foreign Intelligence (PFI) requirements , or for conducting an Enterprise Investigation (EI). (U) The purposes for conducting Preliminary Investigation include such matters as: determining whether a federal crime has occurred or is occurring, or if planning or preparation for such a crime is taking place; identifying, locating, and apprehending the perpetrators; obtaining evidence needed for prosecution; or identifying threats to the national security. (U) The investigation of threats to the national security may constitute an exercise of the FBI's criminal investigation authority as well as its authority to investigate threats to the national security. As with criminal investigations , detecting and solving crimes and arresting and prosecuting the perpetrators are likely objectives of investigations relating to threats to the national security. These investigations, however , serve important purposes outside the ambit of normal criminal investigations , by providing the basis for decisions concerning other measures needed to protect the national security . 6.3 (U) CIVILLIBERTIESAND PRIVACY U) The pursuit of legitimate investigative goals without infringing upon the exercise of onstitutional freedoms is a challenge that the FBI meets through the application of sound _udgment and discretion. In order to protect civil liberties in the conduct of criminal and national -ecurity investigations, every Preliminary Investigation under this subsection must have adequate • redication that is documented in the opening communication. No investigative activity, including Preliminary Investigations , may be taken solely on the ~asis of activities that are protected by the First Amendment or on the race , ethnicity, national rigin or religion of the subject , or a combination of only those factors. Preliminary - ·estigations of individuals, groups or organizations must focus on activities related to the --~eats and or crimes being investigated , not solely on First Amendment activities or on the race , 'city, national origin or religion of the subject. In this context , it is particularly important 6-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October :s, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 clearly to identify and document the law enforcement or national security basis of the Preliminary Investigation. (U) Example: Individuals or groups who communicate with each other or with members of the public in any form in pursuit of social or political causes-such as opposing war or foreign policy, protesting government actions, promoting certain religious beliefs, championing particular local, national, or international causes, or a change in government through noncriminal means, and actively recruit others to join their causes-have a fundamental constitutional right to do so. A Preliminary Investigation may not be opened based solely on the exercise of these First Amendment rights. (U) The AGG-Dom present investigators with a number of authorized investigative methods in the conduct of a Preliminary Investigation. Considering the effect on the privacy and civil liberties of individuals and the potential to damage the reputation of individuals, some of these investigative methods are more intrusive than others. The least intrusive method if reasonable based upon the circumstances of the investigation is to be used, but the FBI must not hesitate to use any lawful method consistent with the AGG-Dom. A more intrusive method may be warranted in light of the seriousness of a criminal or national security threat. (U) By emphasizing the use of the least intrusive means to obtain intelligence, information, and/or evidence, FBI employees can effectively execute their duties while mitigating the potential negative impact on the privacy and civil liberties of all people encompassed within the investigation, including targets, witnesses, and victims. This principle is not intended to discourage FBI employees from seeking relevant and necessary intelligence, information, or evidence, but rather is intended to encourage FBI employees to choose the least intrusive-but still reasonable based upon the circumstances of the investigation - means from the available options to obtain the intelligence, information or evidence. (See DIOG Section 4.4). 6.4 6.4.1 (U) LEGALAUTHORITY (U) CRIMINALINVEST/GATIONS (U) The FBI has statutory authority to investigate all federal crime not assigned exclusively to another federal agency. (See 28 U.S.C. § 533; 18 U.S.C. § 3052; 28 C.F.R. § 0.85 [a]) (U) The FBI also has special investigative jurisdiction to investigate violations of state law in limited circumstances. Specifically, the FBI has jurisdiction to investigate felony killings of state law enforcement officers (28 U.S.C. § 540), violent crimes against interstate travelers (28 U.S.C. § 540A), and serial killers (28 U.S.C. § 540B). Authority to investigate these matters is contingent on receiving a request by an appropriate state official. 6.4.2 (U) THREATS TO THENATIONALSECURITY (U) The FBI has authority to investigate threats to the national security pursuant to executive orders, Attorney General authorities, and various statutory sources. (See Appendix B: Executive Order (EO) 12333; 50 U.S.C. §§ 401 et seq.; 50 U.S.C. §§ 1801 et seq.) Vers10n D.1ted October 15. 2011 6-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 (U) "Threats to the national security" are specifically defined to mean: international terrorism; espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers, organizations, or persons; foreign computer intrusion; and other matters determined by the Attorney General, consistent with EO 12333 or any successor order. (AGG-Dom, Part VII.S) 6.5 (U) PREDICATION (U) A Preliminary Investigation may be opened on the basis of "information or an allegation" indicating the existence of a circumstance described as follows: A) (U) An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information or intelligence relating to the activity or the involvement or role of an individual, group, or organization in such activity. (AGG-Dom, Part II.B.3) B) (U) An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information or intelligence that would help to protect against such activity or threat. (AGG-Dom, Part II.B.3) (U//FOUO) Examples: The following examples have sufficient predication to open a Preliminary Investigation: A) (U//FOUO) A CHS, with no established history, alleges that an individual is a member of a terrorist group; this "allegation" is sufficient predication to open a Preliminary Investigation ; and B) (U//FOUO) If an analyst, while conducting an assessment, discovers on a blog a threat to a specific person, this "information" is enough to open a Preliminary Investigation. 6.6 (U) STANDARDSFOROPENINGOR APPROVINGA PRELIMINARYINVESTIGATION (U) Before opening or approving the conduct of a Preliminary Investigation , an FBI employee or approving official must determine whether: A) (U//FOUO) Adequate predication exist for opening a Preliminary Investigation ; B) (U//FOUO) The Preliminary Investigation is not based solely on the exercise of First Amendment activities or on the race , ethnicity, national origin or religion of the subject or a combination of only such factors ; and C) (U//FOUO) The Preliminary Investigation is an appropriate use of personnel and financial resources. · /FOUO) Additional policies regarding Preliminary Investigations involving any foreign :unbassador, foreign official, foreign student or exchange visitor , protected persons or premises .,- ubjects may be found in to DIOG Appendix G - Classified Provisions [No Foreign Policy a ~ection]. U 'FOUO) A Preliminary Investigation cannot be opened based solely on an FBI collection _ .uirement. 6-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY VersiOI' Dated October 1, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 6.7 (U) OPENING DOCUMENTATION, APPROVAL, EFFECTIVE DATE, NOTICE, EXTENSION, PENDING INACTIVE STATUS, CONVERSION, AND FILE REVIEW 6.7.1 (U) OPENING DOCUMENTATION (U//FOUO) The predication to open a Preliminary Investigation must be documented in the opening Electronic Communication (EC). The appropriate approving authority may grant oral authority to open a Preliminary Investigation if the standards for opening or approving a Preliminary Investigation are met. Should oral authorization to conduct a Preliminary Investigation be granted, an EC setting forth the predicating facts, as well as the identity of the authorizing supervisor and date of oral authorization, must be documented to the supervisor who granted the oral authorization, as soon as practicable, but not more than five (5) business days after granting oral authorization. (U//FOUO) If at the time of the opening, or at anytime thereafter, the Preliminary Investigation involves a sensitive investigative matter, the title/caption must contain the words "Sensitive Investigative Matter." (U//FOUO) The DIOG prohibits the use of control files or administrative files to document investigative activity. (See DIOG Appendix J) 6.7.1.1 (U) APPROVAL I EFFECTIVE DATE I NOTICE (U//FOUO) The effective date of the Preliminary Investigation is the date the final approval authority (e.g., Supervisory Special Agent (SSA) or Special Agent-in-Charge (SAC)) approves the EC by electronic signature /date generated by Sentinel or by handwriting their initials and date on the EC. If the Preliminary Investigation is opened on oral authority, the date on which the oral authority was granted is the effective date. See DIOG Section 3.4.2.2. Adding another subject after opening the Preliminary Investigation does not change the original effective date or the extension date. A) (U//FOUO) Opened By a Field Office: The opening of a Preliminary Investigation by the field office requires prior approval of the SSA. The opening of a Preliminary Investigation does not require FBI Headquarters (FBIHQ) or Department of Justice (DOJ) notification unless the Preliminary Investigation involves a sensitive investigative matter (SIM) as discussed in paragraph C below. FBIHQ division PGs may , however, require written notification to the appropriate FBIHQ unit and section within 15 calendar days following the opening of Preliminary Investigations. B) (U//FOUO) Opened By FBIHO: The opening of a Preliminary Investigation by FBIHQ requires prior approval of the Unit Chief (UC) with written notification to any applicable field office, within 15 calendar days following the opening. The opening of a Preliminary Investigation does not require DOJ notification unless the Preliminary Investigation involves a SIM as discussed in paragraph C below . C) (U//FOUO) Sensitive Investigative Matters (SIM): The opening of a Preliminary Investigation involving a SIM: 1) (U//FOUO) SIM Opened by a Field Office: requires prior Chief Division Counsel (CDC) review and SAC approval, and written notification (EC and a disseminable Letterhead Memorandum (LHM)) , to the appropriate FBIHQ operational UC and Section Chief (SC) Version Dated October 15, 2011 6-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 within 15 calendar days following the opening. Additionally, the field office must notify the United States Attorney's Office (USAO), in writing, unless such notification is inappropriate under the circumstances (e.g., a public corruption investigation of a person who is personally close to the United States Attorney (USA)) or the matter is a counterintelligence or espionage investigation. (See CD PG for details concerning notice in counterintelligence and espionage investigations.) If notice is not provided to the USAO under the exceptions described above, the field office must explain those circumstances in the written notice to FBIHQ. The responsible FBIHQ section must notify, in writing, the appropriate DOJ Criminal Division or NSD official as soon as practicable, but no later than 30 calendar days after the investigation is opened. The notice must identify all known SIMs involved in the investigation (see DIOG Appendix G - Classified Provisions for additional notice requirements). If a SIM arises after the opening of a Preliminary Investigation, investigative activity may continue, but the matter must be reviewed by the CDC and approved by the SAC as soon as practicable, but not more than five (5) business days thereafter to continue the investigation. Notice must be provided as specified above. 2) (U//FOUO) SIM Opened by FBIHQ: requires prior OGC review and SC approval, and written notification (an EC and disseminable LHM) to any appropriate field office within 15 calendar days following the opening; the USAO, unless such notification is inappropriate under the circumstances, (e.g., a public corruption investigation of a person who is personally close to the USA) or the matter is a counterintelligence or espionage investigation; and the appropriate DOJ Criminal Division or NSD official, as soon as practicable, but no later than 30 calendar days after the investigation is opened. (See CD PG for details concerning notice in counterintelligence and espionage investigations.) If notice is not provided to the USAO under the circumstances described above, FBIHQ must explain those circumstances in the written notice to the field office(s) and DOJ. The notice must identify all known SIMs involved in the investigation (see DIOG Appendix G Classified Provisions for additional notice requirements). If a SIM arises after the opening of a Preliminary Investigation, investigative activity may continue, but the matter must be reviewed by OGC and approved by the appropriate FBIHQ operational SC as soon as practicable, but not more than five (5) business days thereafter to continue the investigation. Notice must be provided as specified above. D) (U//FOUO) FBIHO Disapproves Opening: The Executive Assistant Director (EAD) for the National Security Branch must notify the Deputy Attorney General if FBIHQ disapproves a field office's opening of a Preliminary Investigation relating to a threat to the national security on the ground that the predication for the investigation is insufficient, and the EAD for the National Security Branch is responsible for establishing a system that will allow for the prompt retrieval of such denials. (AGG-Dom, Part II.B.5.d) 6.7.2 (U) E XTENSION (U//FOUO) A Preliminary Investigation must be concluded within six months of its opening but may be extended for up to six months by the SAC (delegable to the ASAC)6. FBIHQ division PGs may require written notification of this six month extension to the appropriate FBIHQ operational unit and section. Extensions of Preliminary Investigations beyond a year are discouraged and may only be approved by the appropriate FBIHQ operational section for "good cause." (AGG-Dom, Part II.B.4.a.ii) · (U//FOUO) SACapproval required to extend Preliminary Investigations was non-delegable in the previous ··ersion of the DIOG.That restriction has been removed in this version. 6-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers.on Dcited: Oc.tober l '>.20' 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 6.7.2.1 (U) GOOD CAUSE (U//FOUO) The following factors must be used to determine whether "goo d cause" exists to extend the Preliminary Investigation beyond one year: A) (U//FOUO) Whether logical investigative steps have yielded information that tends to inculpate or exculpate the subject; B) (U//FOUO) The progress that has been made toward determining whether a Full Investigation should be opened or the Preliminary Investigation should be closed; C) (U//FOUO) Whether, based on the planned course of investigation for the following six months, it is reasonably likely that information will be obtained that will lead to predication for a Full Investigation, thereby warranting an extension for another six months, or will lead to exculpatory information, thereby warranting closing the Preliminary Investigation; and D) (U//FOUO) Whether adequate predication has been developed to justify opening a Full Investigation or whether sufficient information has been developed that justifies closing the Preliminary Investigation. 6.7.3 (U) PENDING INACTIVESTATUS (U//FOUO) The DIOG does not authorize placing Preliminary Investigations into a "pending inactive" status. 6.7.4 (U) CONVERSIONTO FULL INVEST/GATION (U//FOUO) When converting a Preliminary Investigation to a Full Investigation, see DIOG Section 7 for approval and notification requirements. 6.7.5 (U) FILE REVIEW (U//FOUO) Supervisory file reviews must be conducted at least once every 90 days in accordance with DIOG Section 3.4.4. File reviews for probationary FBI employees must be conducted at least every 60 days. 6.8 (U) STANDARDSFOR OPENINGORAPPROVINGTHE USE OF AN AUTHORIZED INVESTIGATIVEMETHOD IN PRELIMINARYINVESTIGATIONS (U//FOUO) Prior to opening or approving the use of an investigative method, an FBI employee or approving official must determine whether: A) (U//FOUO) The use of the particular investigative method is likely to further the authorized purpose of the Preliminary Investigation; B) (U//FOUO) The investigative method selected is the least intrusive method, ifreasonable based upon the circumstances of the investigation; and C) (U//FOUO) The method to be used is an appropriate use of personnel and financial resources. Version Dated: October 15, 2011 6-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 6.9 §6 (U) AUTHORIZEDINVESTIGATIVEMETHODS IN PRELIMINARYINVESTIGATIONS (U) All lawful methods may be used in a Preliminary Investigation, except for mail opening, physical search requiring a Federal Rules of Criminal Procedure (FCRP) Rule 41 search warrant or a Foreign Intelligence Surveillance Act (FISA) order, electronic surveillance requiring a judicial order or warrant (Title III or FISA), or Title VII FISA requests. Authorized methods include, but are not limited to, those listed below. Some of the methods listed are subject to special restrictions or review or approval requirements. (AGG-Dom, Part V.4.A) (U//FOUO) A complete discussion of these investigative methods, including approval requirements, is contained in Section 18. The use or dissemination of information obtained by the use of the below methods must comply with the AGG-Dom and DIOG Section 14. The following investigative methods are authorized to be used in Preliminary Investigations: A) (U) Public information. (See Section 18.5.1) B) (U) Records or information - FBI and DOJ. (See Section 18.5.2) C) (U) Records or information - Other federal, state, local, tribal, or foreign government agency. (See Section 18.5.3) D) (U) On-line services and resources. (See Section 18.5.4) E) (U) CHS use and recruitment. (See Section 18.5.5) F) (U) Interview or request information from the public or private entities. (See Section 18.5.6) G) (U) Information voluntarily provided by governmental or private entities. (See Section 18.5.7) H) (U) Physical Surveillance (not requiring a court order). (See Section 18.5.8) I) (U) Consensual monitoring of communications, including electronic communications. (See Section 18.6.1) (U//FOUO) Note: For those state, local and tribal governments that do not sanction or provide a law enforcement exception available to the FBI for one-party consent recording of communications with persons within their jurisdiction, the SAC must approve the consensual monitoring of communications as an Otherwise Illegal Activity (OIA). Prior to the SAC authorizing the OIA, one-party consent must be acquired. The SAC may delegate the OIA approval authority to an Assistant Special Agent-in-Charge (ASAC) or Supervisory Special Agent (SSA). (U//FOUO) See the classified provisions in Appendix G for additional information. J) Intercepting the communications of a computer trespasser. (See Section 18.6.2 ) K) (U) Closed-circuit television/video surveillance, direction finders, and other monitoring devices. (See Section 18.6.3) L) (U) Administrative subpoenas. (See Section 18.6.4) M)(U) Grand jury subpoenas. (See Section 18.6.5) • (U) National Security Letters. (See Section 18.6.6) 0 ) (U) FISA Order for business records. (See Section 18.6.7) 6-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 P) (U) Stored wire and electronic communications and transactional records. (See Section 18.6.8) 7 Q) (U) Pen registers and trap/trace devices. (See Section 18.6.9) R) (U) Mail covers. (See Section 18.6.10) S) (U) Polygraph examinations. (See Section 18.6.11) T) (U) Trash Covers (Searches that do not require a warrant or court order). (See Section 18.6.12) U) (U) Undercover operations. (See Section 18.6. 13) (U) See the classified provisions in DIOG Appendix G for additional information. 6.10 (U) SENSITIVEINVESTIGATIVEMATTERS (SIM) IN PRELIMINARY INVESTIGATIONS (U//FOUO) The title /caption of the opening or subsequent EC for a Preliminary Investigation involving a SIM must contain the words " Sensitive Investigative Matter." DIOG Section 10 contains the required approval authority and factors for consideration when determining whether to conduct or approve a Preliminary Investigation involving a SIM. 6.10.1 (U) SIM CATEGORIESIN PRELIMINARYINVEST/GATIONS (U//FOUO) A SIM is an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security), religious or domestic political organization or individual prominent in such an organization, or news media, an academic nexus, or any other matter which , in the judgment of the official authorizing an investigation , should be brought to the attention of FBIHQ and other DOJ officials . (AGG-Dom, Part VII.N.) As a matter of FBI policy, "judgment" means that the decision of the authorizing official is discretionary. DIOG Section 10 and/or the DIOG Appendix G - Classified Provisions define domestic public official , domestic political candidate, religious or domestic political organization or individual prominent in such an organization, news media, and academic nexus. 6.10.2 (U) ACADEMICNEXUS IN PRELIMINARYINVESTIGATIONS (U//FOUO) As a matter of FBI policy , an investigative activity having an "academic nexus " is considered a SIM if: A) (U//FOUO) The investigative activity involves matters related to the responsibilities of an administrator or faculty member employed by any college or university that is located inside the United States, provided the matter being investigated is related to the individual's position at the institution; or B) (U//FOUO) The matter involves any student association recognized and approved by the college or university at which the student association at issue is located, and the college or university is located inside the United States. (U/ /FOUO) The use of Search Warrants to obtain this information in Preliminary Investigations is prohibited. {See DJDGSection 18.6.8.4.2.3} 7 6-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 . - -- -· ---- ·;i;t.r. UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 (U//FOUO) The sensitivity related to an academic institution arises from the American tradition of "academic freedom" ( e.g., an atmosphere in which students and faculty are free to express unorthodox ideas and views and to challenge conventional thought without fear of repercussion). Academic freedom does not mean, however, that academic institutions are off limits to FBI investigators in pursuit of information or individuals of legitimate investigative interest. (U//FOUO) For matters not considered a SIM even though there is an academic nexus , see the classified provisions in DIOG Appendix G. 6.11 (U) INTELLIGENCECOLLECTION(I.E., INCIDENTALCOLLECTION) (U//FOUO) Intelligence that is responsive to PFI requirements, FBI national collection requirements, and FBI field office collection requirements may be collected incidental to a Predicated Investigation. When information that is responsive to these requirements is incidentally collected in a Predicated Investigation , it should be forwarded to the Field Intelligence Group (FIG) for evaluation and potential dissemination against collection requirements. (See DIOG Section 15.6.1.2 - Written Intelligence Products) All incidental collection must be documented in the 8151 field office file. (U//FOUO) Prior to submitting to the FIG any information that may be evidentiary and therefore potentially discoverable , the FBI employee should discuss with the CDC or OGC the potential impact disseminating the information in an intelligence product may have on the prosecution of the investigation. To the extent dissemination might or is likely to have an adverse impact on the prosecution, the FBI, in consultation with the prosecuting attorney, must assess whether the need for dissemination outweighs the probable impact the dissemination may have on the prosecution. 6.12 (U) STANDARDS FORAPPROVINGTHE CLOSINGOF A PRELIMINARY INVESTIGATION 6.12.1 (U) STANDARDS iU//FOUO) At the conclusion of a Preliminary Investigation, each of the following items must be documented in the closing communication (EC and/or LHM): A) (U//FOUO) A summary of the results of the investigation ; B) (U//FOUO) Whether all logical and reasonable investigation was completed ; C) (U//FOUO) Whether all investigative methods /techniques initiated have been completed and/or discontinued ; D) (U//FOUO) Whether all leads set have been completed and/or discontinued; E) (U//FOUO) Whether all evidence has been returned, destroyed or retained in accordance with evidence policy ; and F) (U//FOUO) A summary statement of the basis on which the Preliminary Investigation will be closed , and a selection of the appropriate closing status: 1) (U//FOUO) C-4 : Administrative Closing , which includes: 6-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers10n Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §6 a) (U//FOUO) No further investigation is warranted because logical investigation and/or leads have been exhausted, and the investigation to date did not identify a criminal violation or a priority threat to the national security b) (U//FOUO) Investigation assigned a new file number c) (U//FOUO) Investigation consolidated into a new file number or an existing file number, or d) (U//FOUO) Unaddressed Work investigation file closed because no investigation or no further investigation will be conducted 2) (U//FOUO) C-5: USA Declination Closing, which includes: a) (U//FOUO) The USAO declined prosecution - individual matter declination b) (U//FOUO) The USAO declined prosecution - blanket declination 3) (U//FOUO) C-6: Other Closing, which includes: a) (U//FOUO) National security investigation has been completed b) (U/ /FOUO) Prosecution became non-viable for national security reasons c) (U//FOUO) Any other reason to close 6.12.2 (U) APPROVAL REQUIREMENTSTO CLOSE (U//FOUO) The appropriate closing supervisor described below must review and approve the closing communication (as described in Section 6.12.1) to ensure it contains the above required information and sufficient details of the investigation on which to base the decision to close the Preliminary Investigation. The closing supervisor must note on the closing document "C," the closing number 4, 5 or 6 (e.g., C-4, C-5 or C-6) and the closing date. The appropriate closing supervisors are: A) (U//FOUO) Opened by a Field Office: Closing a Preliminary Investigation opened by a field office requires approval from the SSA. Notification to the FBIHQ operational unit may be required by division PGs. B) (U//FOUO) Opened by FBIHQ: Closing a Preliminary Investigation opened by FBIHQ requires approval from the UC and notification to any appropriate field office. C) (U//FOUO) SIM Opened by a Field Office: Closing a Preliminary Investigation opened by a field office involving a SIM requires approval from the SAC, written notification to the FBIHQ operational unit and section and the USAO, if the USAO was notified of the opening. D) (U//FOUO) SIM Opened by FBIHQ: Closing a Preliminary Investigation opened by FBIHQ involving a SIM requires approval from the SC and written notification to any appropriate field office. 6.13 (U) OTHER PROGRAMSPECIFICINVESTIGATIVEREQUIREMENTS (U//FOUO) To facilitate compliance with investigative program specific requirements, the FBI employee should consult the relevant division's PG. FBIHQ division PGs, however, may not contradict , alter or otherwise modify the standards established in the DIOG. Version Dated· October 15, 2011 6-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 7 §7 (U) FULLINVESTIGATIONS 7 .1 (U) OVERVIEW (U//FOUO) The AGG-Dom authorizes a second level of investigative activity-Predicated Investigations . Predicated Investigations that concern federal crimes or threats to the national security are subdivided into Preliminary Investigations (Pl) and Full Investigations (Full). A Full Investigation may be opened ifthere is an "articulable factual basis" of possible criminal or national threat activity , as discussed in greater detail in Section 7.5, below. There are three types of Full Investigations: (i) single and multi-subject; (ii) Enterprise; and (iii) positive foreign intelligence collection . 7 .2 (U) PURPOSE AND SCOPE (U) A Full Investigation may be opened to detect, obtain information about , or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence. (U) The purposes for conducting Full Investigations include such matters as: A) (U) determining whether a federal crime is being planned, prepared for, occurring or has occurred ; B) (U) identifying, locating , and apprehending the perpetrators; C) (U) obtaining evidence for prosecution; D) (U) identifying threats to the national security ; E) (U) investigating an enterprise (as defined in DIOG Section 8); or F) (U) collecting positive foreign intelligence (PFI) (as defined in DIOG Section 9). 1U) The investigation of threats to the national security can be investigated under the FBI's riminal investigation authority or its authority to investigate threats to the national security. As .,·ith criminal investigations, detecting and solving crimes, gathering evidence and arresting and pros ecuting the perpetrators are frequently the objectives of investigations relating to threats to :be national security. These investigations also serve important purposes outside the ambit of normal criminal investigations, however , by providing the basis for decisions concerning other measures needed to protect the national security. /FOUO) A Full Investigation solely for the collection of positive foreign intelligence extends e sphere of the FBI's information gathering activities beyond federal crimes and threats to the - tional security and permits the FBI to seek information regarding a broader range of matters -elating to foreign powers , organizations, or persons that may be of interest to the conduct of the United States' foreign affairs. (See DIOG Section 9) T i. 3 (U) CIVILLIBERTIESAND PRIVACY The pursuit of legitimate investigative goals without infringing upon the exercise of _ n titutional freedoms is a challenge that the FBI meets through the application of sound 7-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versior Dated October 15 2G~! UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §7 judgment and discretion. In order to protect civil liberties e the conduct of criminal and national security investigations, every Full Investigation under this subsection must have adequate predication that is documented in the opening communication. (U) No investigative activity, including Full Investigations, may be taken solely on the basis of activities that are protected by the First Amendment or on the race, ethnicity, national origin or religion of the subject, or a combination of only those factors. Full Investigations of individuals, groups or organizations must focus on activities related to the threats or crimes being investigated, not solely on First Amendment activities or on the race, ethnicity, national origin or religion of the subject. In this context, it is particularly important clearly to identify and document the law enforcement or national security basis of the Full Investigation. (U) Example: Individuals or groups who communicate with each other or with members of the public in any form in pursuit of social or political causes-such as opposing war or foreign policy, protesting government actions, promoting certain religious beliefs, championing particular local, national, or international causes, or a change in government through noncriminal means, and actively recruit others to join their causes-have a fundamental constitutional right to do so. A Full Investigation may not be opened based solely on the exercise of these First Amendment rights. (U) The AGG-Dom authorize all lawful investigative methods in the conduct of a Full Investigation. Considering the effect on the privacy and civil liberties of individuals and the potential to damage the reputation of individuals, some of these investigative methods are more intrusive than others. The least intrusive method if reasonable based upon the circumstances of the investigation is to be used, but the FBI must not hesitate to use any lawful method consistent with the AGG-Dom. A more intrusive method may be warranted in light of the seriousness of a criminal or national security threat or the importance of a foreign intelligence requirement. (U) By emphasizing the use of the least intrusive means to obtain intelligence or evidence, FBI employees can effectively execute their duties while mitigating the potential negative impact on the privacy and civil liberties of all people encompassed within the investigation, including targets, witnesses, and victims. This principle is not intended to discourage FBI employees from seeking relevant and necessary intelligence, information, or evidence, but rather is intended to encourage FBI employees to choose the least intrusive-but still reasonable based upon the circumstances of the investigation-from the available options to obtain the intelligence, information or evidence. (See DIOG Section 4) 7 .4 7.4.1 (U) LEGALAUTHORITY (U) CRIMINALINVESTIGATIONS (U) The FBI has statutory authority to investigate all federal crime not assigned exclusively to another federal agency. (See 28 U.S.C. § 533; 18 U.S.C. § 3052; 28 C.F.R. § 0.85 [a].) (U) The FBI also has special investigative jurisdiction to investigate violations of state law in limited circumstances. Specifically, the FBI has jurisdiction to investigate felony killings of state law enforcement officers (28 U.S.C. § 540), violent crimes against interstate travelers (28 U.S.C. Version Dated October 15, 2011 7-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §7 § 540A), and serial killers (28 U.S.C. § 5408). Authority to investigate these matters is contingent on receiving a request by an appropriate state official. 7.4.2 (U) THREATS TO THENATIONALSECURITY (U) The FBI has authority to investigate threats to the national security pursuant to executive orders, Attorney General authorities, and various statutory sources. (See E.O. 12333; 50 U.S.C. §§ 401 et seq.; 50 U.S.C. §§ 1801 et seq.) (U) "Threats to the national security" are specifically defined to mean: international terrorism; espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers, organizations, or persons; foreign computer intrusion; and other matters determined by the Attorney General, consistent with Executive Order 12333 or any successor order. (AGG-Dom, Part VII.S) 7.4.3 (U) FOREIGNINTELLIGENCECOLLECTION (U) The FBI authority to collect foreign intelligence derives from a mixture of administrative and statutory sources. (See E.O. 12333; 50 U.S.C. §§ 401 et seq.; 50 U.S.C. §§ 1801 et seq.; 28 U.S.C. § 532 note (incorporates the Intelligence Reform and Terrorism Protection Act, P.L. 108458 §§ 2001-2003). (U) "Foreign Intelligence" is defined as information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists. (AGG-Dom, Part VILE) 7.5 (U) PREDICATION (U) A Full Investigation may be opened if there is an "articulable factual basis" that reasonably indicates one of the following circumstances exists: A) (U) An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity; B) (U) An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat; or C) (U) The investigation may obtain foreign intelligence that is responsive to a PFI requirement, as defined in DIOG Section 7.4.3, above. (U//FOUO) Examples: The following examples have sufficient predication to open a Full Investigation: A) (U//FOUO) corroborated information from an intelligence agency states that an individual is a member of a terrorist group; 7-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic lnvestigations and Operations Guide §7 B) (U//FOUO) an analyst discovers on a blog a threat to a specific home builder and additional information connecting the blogger to a known terrorist group; and C) (U//FOUO) FBI DI has posted an authorized PFI requirement for collection. 7 .6 (U) STANDARDSFOR OPENINGORAPPROVINGA FULL INVESTIGATION (U//FOUO) Before opening or approving the conduct of a Full Investigation, an FBI employee or approving official must determine whether: A) (U//FOUO) Adequate predication exist for opening a Full Investigation ; B) (U//FOUO) The Full Investigation is not based solely on the exercise of First Amendment activities or on the race , ethnicity, national origin or religion of the subject or a combination of only such factors; and C) (U//FOUO) The Full Investigation is an appropriate use of personnel and financial resources. (U//FOUO) Additional policies regarding Full Investigations involving any foreign ambassador, foreign official , foreign student or exchange visitor , protected persons or premises as subjects may be found in DIOG Appendix G - Classified Provisions [No Foreign Policy Objection (NFPO)]. (U//FOUO) A Full Investigation cannot be opened solely based on an FBI collection requirement. 7. 7 (U) OPENINGDOCUMENTATION,APPROVAL, EFFECTIVEDATE, NOTICE, PENDING INACTIVESTATUS, FILE REVIEW,AND LETTERHEAD MEMORANDUM 7.7.1 (U) OPENING DOCUMENTATION (U/FOUO) The predication to open a Full Investigation must be documented in the opening EC. The appropriate approving authority may grant oral authority to open a Full Investigation if the standards for opening or approving a Full Investigation are met. Should oral authorization to conduct a Full Investigation be granted , an EC setting forth the predicating facts, as well as the identity of the authorizing supervisor and date of oral authorization, must be documented to the supervisor who granted the oral authorization, as soon as practicable , but not more than five (5) business days after granting the authorization. (U//FOUO) If at the time of the opening , or at anytime thereafter, the Full Investigation involves a sensitive investigative matter, the title /caption must contain the words "Sensitive Investigative Matter. " (U//FOUO) The DIOG prohibits the use of control files or administrative files to document investigative activity . See DIOG Appendix J. 7.7.1.1 (U) APPROVAL I EFFECTIVEDATE I NOTICE (U/FOUO) The effective date of the Full Investigation is the date the final approval authority (e.g., SSA or SAC) approves the EC by electronic signature /date generated by Sentinel or by handwriting their initials and date on the EC . If the Full Investigation is opened on oral Version Dated: October 15, 2011 7-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §7 authority, the date on which the oral authority was granted is the date the investigation was opened. See Section 3.4.2.2. A) (U//FOUO) Opened By a Field Of/ice: The opening of a Full Investigation for circumstances described in Sections 7.5.A and 7.5.B (i.e., for any reason other than to collect intelligence that is responsive to a PFI requirement) by a field office requires prior approval of the SSA with written notification within 15 calendar days of the opening to the responsible FBIHQ operational unit. The opening of a Full Investigation of a United States person (USPER) relating to a threat to the national security for circumstances described in Sections 7.5.A and 7.5.B (i.e., for any reason other than to collect intelligence that is responsive to a PFI requirement) requires the responsible FBIHQ-NSB unit to notify DOJ NSD as soon as practicable, but in all events within 30 calendar days after the investigation is opened or the subject is determined to be an USPER. If the subject of the investigation is a non-USPER and later becomes or is determined to be an USPER, the notice provisions in this subsection to DOJ NSD also apply. B) (U/ /FOUO) Opened By FBIHO: The opening of a Full Investigation by FBIHQ for circumstances described in Sections 7.5.A and 7.5.B (i.e., for any reason other than to collect intelligence that is responsive to a PFI requirement) requires prior approval of the UC with written notification within 15 calendar days of the opening to any appropriate field office. The opening of a Full Investigation by FBIHQ of an USPER relating to a threat to the national security for circumstances described in Sections 7.5.A and 7.5.B (i.e., for any reason other than to collect intelligence that is responsive to a PFI requirement) also requires notice to DOJ NSD as soon as practicable, but in all events within 30 days after the investigation is opened or the subject is determined to be an USPER. If the subject of the investigation is a nonUSPER and later becomes or is determined to be an USPER, the notice provisions in this subsection to the field office and DOJ also apply. C) (U//FOUO) Sensitive Investigative Matters (SIM): The opening of a Full Investigation involving a sensitive investigative matter: 1) (U//FOUO) SIM Opened By a Field Of/ice: requires prior CDC review and SAC approval, and written notification (EC and disserninable LHM) to the appropriate FBIHQ operational UC and SC within 15 calendar days following the opening. Additionally, the field office must notify the USAO, in writing, unless such notification is inappropriate under the circumstances (e.g., a public corruption investigation of a person who is personally close to the United States Attorney (USA)), or the matter is a counterintelligence or espionage investigation. (See CD PG for details concerning notice in counterintelligence and espionage investigations.) If notice is not provided to the USAO under the circumstances described above, the field office must explain those circumstances in the written notice to FBIHQ. The responsible FBIHQ section must notify, in writing, the appropriate DOJ Criminal Division official or NSD official as soon as practicable, but no later than 30 calendar days after the investigation is opened. The notice must identify all known sensitive investigative matters involved in the investigation (see DIOG Appendix G - Classified Provisions for additional notice requirements). If a sensitive investigative matter arises after the opening of a Full Investigation, investigative activity may continue, but the matter must be reviewed by the CDC and approved by the SAC as soon as practicable, but not more than five (5) business days thereafter to continue the investigation. Notice must be furnished as specified above. 2) (U//FOUO) SIM Opened By FBIHO: requires prior OGC review and SC approval, and written notification (EC and disserninable LHM) to any appropriate field office within 15 calendar days following the opening. Additionally, FBIHQ operational unit must notify the 7-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on D ted: OLtobe!" 15, 20!. l UNCLASSIFIED §7 - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide appropriate USAO(s) in writing, unless such notification is inappropriate under the circumstances (e.g., a public corruption investigation of a person who is personally close to the USA) or the matter is a counterintelligence or espionage investigation ; and the appropriate DOJ Criminal Division official or NSD official , as soon as practicable , but no later than 30 calendar days after such an investigation is opened. (See CD PG for details concerning notice in counterintelligence and espionage investigations.) If notice is not provided to the USAO under the "circumstances " exception described above , FBIHQ must explain the circumstances in the written notice to the field office(s) and DOJ. The notice must identify all known sensitive investigative matters involved in the investigation (see DIOG Appendix G - Classified Provisions for additional notice requirements). If a sensitive investigative matter arises after the opening of a Full Investigation, investigative activity may continue, but the matter must be reviewed by OGC and approved by the appropriate FBIHQ SC as soon as practicable , but not more than five (5) business days thereafter to continue the investigation. Notice must be furnished as specified above. (AGG-Dom, Part II.B.5.a) D) (U//FOUO) Positive Foreign Intelligence Full Investigation: The opening of a Full Investigation in order to collect positive foreign intelligence for circumstances described in Section 7.5.C above must be approved as provided in DIOG Section 9. Additionally , written notification to FBIHQ Domain , Collection , HUMINT Management Section (DCHMS) SC and DOI NSD is required as soon as practicable but no later than 30 calendar days after opening the investigation. E) (U//FOUO) FBIHO Disapproves Opening: The EAD for the National Security Branch (NSB) must notify the Deputy Attorney General ifFBIHQ disapproves a field office ' s opening of a Full Investigation relating to a threat to the national security on the ground that the predication for the investigation is insufficient , and the EAD for the NSB is responsible for establishing a system that will allow for the prompt retrieval of such denials. (AGG-Dom , Part II.B.5.d) 7.7.2 (U) PENDING INACTIVE STATUS (U/FOUO) A Full Investigation may be placed in "pending inactive" status once all logical investigation has been completed and only prosecutive action or other disposition remains to be reported. Examples of Full Investigations that may be placed in "pending inactive" status would include, but not be limited to: criminal investigations pending an appeal ; fugitive investigations , when all logical investigation has been conducted and the subject is still in fugitive status; parental kidnapping investigations, when the parent who kidnapped the child is residing in a foreign country and the local authorities will not or cannot extradite the subject back to the United States. 7.7.3 (U) FILE REVIEW (U/FOUO) Supervisory file reviews must be conducted at least once every 90 days in accordance with DIOG Section 3.4.4. File reviews for probationary FBI employees must be conducted at least every 60 days. 7.7.4 (U) ANNUAL LETTERHEAD MEMORANDUM (U/FOUO) Annual letterhead memoranda regarding the status of Full Investigations are not required by the AGG-Dom ; however, the FBIHQ operational divisions may require such reports Version Dated· October 15, 2011 7-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §7 in their PGs. See foreign intelligence collection in Section 9 for annual reporting requirements to FBIHQ DCHMS and DOJ. 7.8 (U) STANDARDSFOR OPENINGOR APPROVINGTHE USE OF AN AUTHORIZED INVESTIGATIVEMETHOD IN FULL INVESTIGATIONS (U//FOUO) Prior to opening or approving the use of an investigative method, an FBI employee or approving official must determine whether: A) (U//FOUO) The use of the particular investigative method is likely to further the authorized purpose of the Full Investigation; B) (U//FOUO) The investigative method selected is the least intrusive method, if reasonable based upon the circumstances of the investigation; C) (U//FOUO) If the Full Investigation is for collecting positive foreign intelligence, the FBI is operating openly and consensually with a USPER, to the extent practicable; and D) (U//FOUO) The method to be used is an appropriate use of personnel and financial resources. 7.9 (U) AUTHORIZEDINVESTIGATIVEMETHODS IN FULL INVESTIGATIONS (U) All lawful methods may be used in a Full Investigation, unless the investigation is to collect foreign intelligence. A complete discussion of these investigative methods, including approval requirements, is contained in Section 18. The use or dissemination of information obtained by the use of these methods must comply with the AGG-Dom and DIOG Section 14. The following investigative methods are authorized to be used in all Full Investigations, other than investigations to collect foreign intelligence: A) (U) Public information. (Section 18.5.1) B) (U) Records or information - FBI and DOJ. (Section 18.5.2) C) (U) Records or information - Other federal, state, local, tribal, or foreign government agency. (Section 18.5.3) D) (U) On-line services and resources. (Section 18.5.4) E) (U) CHS use and recruitment. (Section 18.5.5) F) (U) Interview or request information from the public or private entities. (Section 18.5.6) G) (U) Information voluntarily provided by governmental or private entities. (Section 18.5.7) H) (U) Physical Surveillance (not requiring a court order). (Section 18.5.8) I) (U) Consensual monitoring of communications, including electronic communications. (Section 18.6.1) (U//F OUO) Note: For those state , local and tribal governments that do not sanction or provide a law enforcement exception available to the FBI for one-party consent recording of communications with persons within their jurisdiction, the SAC must approve the consensual monitoring of communications as an Otherwise Illegal Activity (OIA). Prior to the SAC authorizing the OIA, one-party consent must be acquired. The SAC may delegate the OIA approval authority to an Assistant Special Agent-in-Charge (ASAC) or Supervisory Special Agent (SSA). 7-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vtr,10'1 D·1tPCl: October 15, 2011 C. ·cLA SIFIED - FOR OFFICIAL USE O LY §7 Domestic Investigationsand OperationsGuide (U//FOUO) See the classified provisions in Appendix G for additional information. J) (U) Intercepting the communications of a computer trespasser. (Section 18.6.2) K) (U) Closed-circuit television/video surveillance, direction finders, and other monitoring devices. (Section 18.6.3) L) (U) Administrative subpoenas. (Section 18.6.4) M)(U) Grand jury subpoenas. (Section 18.6.5) N) (U) National Security Letters. (Section 18.6.6) 0) (U) PISA Order for business records. (Section 18.6.7). P) (U) Stored wire and electronic communications and transactional records. (Section 18.6.8) Q) (U) Pen registers and trap/trace devices. (Section 18.6.9) R) (U) Mail covers. (Section 18.6. l 0) S) (U) Polygraph examinations. (Section 18.6.11) T) (U) Trash Covers (Searches that do not require a warrant or court order). (Section 18.6.12) U) (U) Undercover Operations (Section 18.6.13) V) (U) Searches - with a warrant or court order. (Section 18.7.1) W)(U) Electronic surveillance - Title III. (Section 18.7.2) X) (U) Electronic surveillance - FISA and FISA Title VII (acquisition of foreign intelligence information). (Section 18.7.3) (U) See the classified provisions in DIOG Appendix G for additional information. 7.10 (U) SENSITIVEINVESTIGATIVEMATTERS (SIM) IN FULL INVESTIGATIONS (U//FOUO) The title/caption of the opening or subsequent EC for a Full Investigation involving a sensitive investigative matter must contain the words "Sensitive Investigative Matter." DIOG Section 10 contains the required approval authority and factors to be considered when determining whether to conduct or approve a Full Investigation involving a SIM. 7.10.1 (U) SIM CATEGORIESIN FULL INVEST/GATIONS (U/FOUO) A SIM is an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security), religious or domestic political organization or individual prominent in such an organization, or news media, an academic nexus, or any other matter which, in the judgment of the official authorizing an investigation, should be brought to the attention of FBIHQ and other DOJ officials. (AGG-Dom, Part VII.N). As a matter of FBI policy, "judgment" means that the decision of the authorizing official is discretionary. DIOG Section 10 and/or the DIOG Appendix G - Classified Provisions define domestic public official, domestic political candidate, religious or domestic political organization or individual prominent in such an organization, news media, and academic nexus. Version Datl · 0 :to;:,, 15, 2011 7-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 7.10.2 §7 (U) ACADEMICNEXUS IN FULL INVEST/GATIONS (U/FOUO) As a matter of FBI policy, an investigative activity having an "academic nexus" is considered a SIM if: A) (U//FOUO) the investigative activity involves matters related to the responsibilities of an administrator or faculty member employed by any college or university that is located inside the United States, provided the matter under a Predicated Investigation is related to the individual's position at the institution; or B) (U//FOUO) the matter involves any student association recognized and approved by the college or university at which the student association at issue is located, and the college or university is located inside the United States. (U//FOUO) The sensitivity related to an academic institution arises from the American tradition of "academic freedom" (i.e., an atmosphere in which students and faculty are free to express unorthodox ideas and views and to challenge conventional thought without fear of repercussion). Academic freedom does not mean, however, that academic institutions are off limits to FBI investigators in pursuit of information or individuals of legitimate investigative interest. (U//FOUO) For matters not considered a sensitive investigative matter even though there is an academic nexus, see the classified provisions in DIOG Appendix G. 7.11 (U) INTELLIGENCE COLLECTION(I.E., INCIDENTALCOLLECTION) (U//FOUO) Intelligence that is responsive to PFI requirements, FBI national collection requirements, and FBI field office collection requirements may be collected incidental to a Predicated Investigation. When information that is responsive to these requirements is incidentally collected in a Predicated Investigation, it should be forwarded to the FIG for evaluation and potential dissemination against collection requirementshttp://home.fbinet.fbi/forms/fd1028/DIOG/Lists/Program Policy Guides/Allltems.aspx. (See DIOG Section 15.6.1.2 - Written Intelligence Products) All incidental collection must be documented in the 8151 field office file. (U//FOUO) Prior to submitting to the FIG any information that may be evidentiary and therefore potentially discoverable, the FBI employee should discuss with the CDC or OGC the potential impact disseminating the information in an intelligence product may have on the prosecution of the investigation. To the extent dissemination might or is likely to have an adverse impact on the prosecution, the FBI, in consultation with the prosecuting attorney, must assess whether the need for dissemination outweighs the probable impact the dissemination may have on the prosecution. (U) Because the authority to collect positive foreign intelligence enables the FBI to obtain information pertinent to the United States' conduct of its foreign affairs, even if that information is not related to criminal activity or threats to the national security, the information gathered may concern lawful activities. Accordingly, the FBI must operate openly and consensually with an USPER to the extent practicable when collecting positive foreign intelligence that does not concern criminal activities or threats to the national security. 7-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §7 7.12 (U) STANDARDSFORAPPROVINGTHE CLOSINGOF A FULL INVESTIGATION 7.12.1 (U) STANDARDS (U//FOUO) At the conclusion of a Full Investigation, each of the following items must be documented in the closing communication (EC and/or LHM): A) (U//FOUO) A summary of the results of the investigation ; B) (U//FOUO) Whether sufficient personnel and financial resources were expended on the investigation, or an explanation/justification for not expending sufficient resources; C) (U//FOUO) Whether logical and reasonable investigation was completed; D) (U//FOUO) Whether all investigative methods/techniques initiated have been completed and/or discontinued; E) (U//FOUO) Whether all leads set have been completed and/or discontinued; F) (U//FOUO) Whether all evidence has been returned, destroyed or retained in accordance with evidence policy; and G) (U//FOUO) A summary statement of the reason the Full Investigation will be closed, and selection of the appropriate closing status: 1) (U//FOUO) C-4: Administrative Closing, which includes: a) (U//FOUO) No further investigation is warranted because logical investigation and/or leads have been exhausted, and the investigation to date did not identify a criminal violation or a priority threat to the national security b) (U//FOUO) Investigation assigned a new file number c) (U//FOUO) Investigation consolidated into a new file number or an existing file number d) (U//FOUO) Unaddressed Work investigation file closed because no investigation or no further investigation will be conducted 2) (U//FOUO) C-5: USA Declination Closing , which includes: a) (U//FOUO) The USAO declined prosecution - individual matter declination b) (U//FOUO) The USAO declined prosecution - blanket declination 3) (U//FOUO) C-6: Other Closing, which includes: a) (U//FOUO) Final prosecution or final prosecutive action has been completed b) (U//FOUO) National security investigation has been completed c) (U//FOUO) Prosecution became non-viable for national security reasons d) (U//FOUO) A federal grand jury returned a "No True Bill" e) (U//FOUO) A nolle prosequi has been entered with the court f) (U//FOUO) any other reason for closing Vers10n Dated October 15, 2011 7-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 7.12.2 (U) APPROVAL §7 REQUIREMENTS TO CLOSE lJ 'FOUO) The appropriate closing supervisor described below must review and approve the ~lo ing communication (as described in Section 7.12.1) to ensure it contains the above-required formation and sufficient details of the investigation on which to base the decision to close the Full Investigation . The closing supervisor must note on the closing document "C," the closing mber 4, 5 or 6 (e.g., C-4, C-5 or C-6) and the closing date. Although there is no duration limit or a Full Investigation, the investigation must be closed upon all investigative activity being exhausted. The appropriate closing supervisors are: A) (U//FOUO) Opened by a Field Office: Closing a Full Investigation opened by a field office requires approval from the SSA. Notification to the FBIHQ operational unit may be required by division PGs. B) (U//FOUO) Opened by FBIHO: Closing a Full Investigation opened by FBIHQ requires approval from the UC and notification to the appropriate field office. C) (U//FOUO) SIM Opened by a Field Office: Closing a Full Investigation opened by a field office involving a sensitive investigative matter requires approval from the SAC and written notification to the FBIHQ operational unit and section and the USAO, if the USAO was notified of the opening. D) (U//FOUO) SIM Opened by FBIHO: Closing a Full Investigation opened by FBIHQ involving a sensitive investigative matter requires approval from the SC and written notification to the appropriate field office. E) (U// FOUO) Positive Foreign Intelligence: (See DIOG Section 9) i. 13 (U) OTHER PROGRAM SPECIFIC INVESTIGATIVE REQUIREMENTS F OUO) To facilitate compliance with investigative program-specific requirements , the FBI loyee should consult the relevant division's PG to ascertain any program-specific irements. FBIHQ division PGs, however, may not contradict , alter or otherwise modify the I0'.1D.1ted 0Ltobu 1'>,2011 - OR OFFICIAL SE ONLY -rigation and Operations Guide Addi ionally . the FBIHQ operati onal unit must notify the appropriate USAO(s) in writing, unle uch notification is inappropriate under the circumstances (e.g., a public corruption Enterp rise Investigation of a group that is personally close to the USA), or the matter is a counterintelligence or espionage investigation . (See CD PG for details concerning notice in counterintelligence and espionage investigations.) If notice is not provided to the USAO under the circumstances described above, the FBIHQ operational unit must explain those circumstances in the written notice to the field office(s) and DOJ. The responsible FBIHQ operational section must notify, in writing, the appropriate DOJ Criminal Division or National Security Division (NSD) official as soon as practicable, but no later than 30 calendar days after the investigation is opened. The notice must identify all known sensitive investigative matters (SIM) involved in the Enterprise Investigation (see DIOG Appendix G - Classified Provisions for additional notice requirements) . (U//FOUO) If a SIM arises after the opening of an Enterprise Investigation, investigative activity may continue , but the matter must be reviewed by OGC and approved by the appropriate FBIHQ SC as soon as practicable , but not more than five (5) business days thereafter to continue the investigation. Notice must be furnished as specified above. 8.6.4 (U) NOTICE REQUIREMENTS ( //FOUO) FBIHQ division PGs may require specific facts to be included in a field office request to open an Enterprise Investigation . At a minimum, the request must include whether the Enterprise Investigation is a SIM. OUO) The responsible FBIHQ section must notify the DOJ NSD or the Organized Crime and Racketeering Section (OCRS) of the opening of an Enterprise Investigation by a field office orb FBIHQ , as soon as practicable but no later than 30 calendar days after the opening of the inve tigation. c F OUO) For Enterprise Investigations that involve groups of persons who pose a national - urity threat, the responsible DOJ component for the purpose of notification and reports is the . • D. For Enterprise Investigations relating to a pattern of racketeering activity that does not ·olve a national security threat , the responsible DOJ component is the OCRS of the Criminal ff, i ion. (AGG-Dom, Part II.C.3) ,.: The Assistant Attorney General for National Security or the Chief of the OCRS , as _ propria te, may at any time request the FBI to provide a report on the status of an Enterprise · tigation, and the FBI will provide such reports as requested. (AGG-Dom , Part II C.3 .d) 8.6.5 (U) FILEREVIEW 'FO 0 ) Supervisory file reviews must be conducted at least once every 90 days in ...ordan ce with DIOG Section 3.4.4 . File reviews for probationary agents must be conducted at -~ - once every 60 days. 8-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 8.7 §8 (U) AUTHORIZEDINVESTIGATIVEMETHODS IN AN ENTERPRISEINVESTIGATION (U//FOUO) An Enterprise Investigation may only be opened and operated as a Full Investigation and is subject to the same requirements that apply to a Full Investigation. Therefore, the standards for opening or approving the use of investigative methods and the availability of investigative methods that may be used in an Enterprise Investigation are the same as set forth in Sections 7.8 and 7.9. 8.8 (U) SENSITIVEINVESTIGATIVEMATTERS (SIM) IN ENTERPRISE INVESTIGATIONS (U//FOUO) The title/caption of the opening or subsequent EC for a Full Enterprise Investigation involving a sensitive investigative matter must contain the words "Sensitive Investigative Matter." DIOG Section 10 contains the required approval authority and factors to be considered when determining whether to conduct or approve a Full Enterprise Investigation involving a SIM. 8.8.1 (U) SIM CATEGORIESIN ENTERPRISEINVEST/GATIONS (U//F OUO) A SIM is an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security) , relig ious or domestic political organization or individual prominent in such an organization , or news media, an academic nexus, or any other matter which, in the judgment of the official autho rizing an investigation, should be brought to the attention of FBIHQ and other DOJ officials. (AGG-Dom , Part VII.N). As a matter of FBI policy, "judgment" means that the e i ion of the authorizing official is discretionary. DIOG Section 10 and/or the DIOG Appendix G - Classified Provisions define domestic public official, domestic political candidate, religious r domestic political organization or individual prominent in such an organization, news media, · d academic nexus. 8.8.2 (U) ACADEMICNEXUSIN ENTERPRISEINVEST/GATIONS ~- FOU O) As a matter of FBI policy , an investigative activity having an "academic nexus" is _ ...-idered a SIM if: ) (U//FOUO) the investigative activity involves matters related to the responsibilities of an administrator or faculty member employed by any college or university that is located inside the United States, provided the matter under a Predicated Investigation is related to the individual's position at the institution; or B) (U//FOUO) the matter involves any student association recognized and approved by the college or university at which the student association at issue is located, and the college or university is located inside the United States. _ "'=OCO)The sensiti vity related to an academic institution arises from the American tradition - __ emic freedom " (e.g ., an atmosphere in which students and faculty are free to express ox ideas and views and to challenge conventional thought without fear of repercussion). -=:: 1 freedom does not mean , however , that academic institutions are off limits to FBI in pursuit of information or individuals of legitimate investigative interest. 8-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY "Domes\1c \n'ves\1ga\1ons anu \)pera\rnns Gu1ue (U//FOUO) For matters not considered a sensitive investigative matter even though there is an academic nexus, see the classified provisions in DIOG Appendix G. 8.9 (U) INTELLIGENCE COLLECTION(I.E., INCIDENTALCOLLECTION) (U//FOUO) Intelligence that is responsive to PFI requirements, FBI national collection requirements and FBI field office collection requirements may be collected incidental to an Enterprise Investigation. When information that is responsive to these requirements is incidentally collected during an Enterprise Investigation, it should be forwarded to the Field Intelligence Group (FIG) for evaluation and potential dissemination against collection requirements. (See DIOG Section 15.6.1.2 - Written Intelligence Products) All incidental collection must be documented in the 8151 field office file. (U//FOUO) Prior to submitting to the FIG any information that may be evidentiary and therefore potentially discoverable, the FBI employee should discuss with the CDC or OGC the potential impact disseminating the information in an intelligence product may have on the prosecution of the investigation. To the extent dissemination might or is likely to have an adverse impact on the prosecution, the FBI, in consultation with the prosecuting attorney, must assess whether the need for dissemination outweighs the probable impact the dissemination may have on the prosecution. 8.10 (U) STANDARDSFORAPPROVINGTHE CLOSINGOF AN ENTERPRISE INVESTIGATION 8.10.1 (U) STANDARDS (U//FOUO) At the conclusion of an Enterprise Investigation, each of the following items must be documented in the closing communication (EC and/or LHM): A) (U//FOUO) A summary of the results of the investigation; B) (U//FOUO) Whether logical and reasonable investigation was completed; C) (U//FOUO) Whether all investigative methods initiated have been completed and/or discontinued; D) (U//FOUO) Whether all leads set have been completed and/or discontinued; E) (U//FOUO) Whether all evidence has been returned, destroyed or retained in accordance with evidence policy; and F) (U//FOUO) A summary statement of the basis on which the Enterprise Investigation will be closed, and selection of the appropriate closing status: 1) (U//FOUO) C-4: Administrative Closing, which includes: a) (U//FOUO) No further investigation is warranted because logical investigation and/or leads have been exhausted, and the investigation to date did not identify a criminal violation or a priority threat to the national security b) (U//FOUO) Investigation assigned a new file number, or c) (U//FOUO) Investigation consolidated into a new file number or an existing file number. Version Dated: October 15, 2011 8-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §8 2) (U//FOUO) C-6: Other Closing, which includes: a) (U//FOUO) Enterprise Investigation has been completed; or b) (U//FOUO) Any other type of closing (U) APPROVAL 8.10.2 REQUIREMENTS TO CLOSE (U//FOUO) The appropriate closing supervisor described below must review and approve the closing communication (as described in Section 8.10.1) to ensure it contains the above-required information and sufficient details of the investigation on which to base the decision to close the Enterprise Investigation. The closing supervisor must note on the closing document "C," the closing status using 4 or 6 (e.g., C-4 or C-6) and the closing date. Although there is no limit on the duration of an Enterprise Investigation, the investigation must be closed upon all investigative activity being exhausted. The appropriate closing supervisors are: A) (U//FOUO) Opened by a Field Office with FBIHO SC Approval: Closing an Enterprise Investigation opened by a field office requires the prior approval of the appropriate FBIHQ SC. B) (U//FOUO) Opened by FBIHO: Closing an Enterprise Investigation opened by FBIHQ requires approval from the appropriate SC and notification to the appropriate field office. C) (U//F OUO) SIM Opened by a Field Office with FBIHO SC Approval: Closing an Enterprise Investigation opened by a field office involving a sensitive investigative matter requires approval from the appropriate FBIHQ SC. (U//FOUO) SIM Opened by FBIHO: Closing an Enterprise Investigation opened by FBIHQ involving a sensitive investigative matter requires approval from the SC, and written notification to the appropriate field office. 8.11 (U) OTHER PROGRAM SPECIFIC INVESTIGATIVE REQUIREMENTS (U//F OUO) To facilitate compliance with investigative program-specific requirements, the FBI rnployee should consult the relevant division's PG to ascertain any program-specific requirements. FBIHQ division PGs , however, may not contradict, alter or otherwise modify the tandar ds established in the DIOG. 8-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vrr~1on Dated: 0LtObt:r 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 9 §9 (U) FOREIGNINTELLIGENCE 9.1 (U) OVERVIEW (U) Foreign Intelligence defined: Foreign intelligence is " information relating to the capabilities , intentions, or activities of foreign governments or elements thereof , foreign organizations , or foreign persons , or international terrorists. " A "Foreign Intelligence Requirement" is a collection requirement issued under the authority of the Director of National Intelligence (DNI) and accepted by the FBI Directorate of Intelligence (DI) . Additionally , the President, a United States Intelligence Community (USIC) office designated by the President , the Attorney General , Deputy Attorney General , or other designated Department of Justice (DOJ) official may levy a foreign intelligence requirement on the FBI. Foreign intelligence collection by the FBI is based upon requirements . (U//FOUO) Foreign intelligence requirements issued by one of the parties listed above and accepted by the FBI DI will fall into one of two categories: (i) those that address national ecurity issues that are within the FBI's core national security mission (FBI collection requirements); and (ii) information relating to the capabilities , intentions, or activities of foreign governments or elements thereof , foreign organizations , foreign persons , or international t rrorists which are not within the FBI's core national security mission (PFI Collection Requirements). -C QUO) Requirements which fall into the first category may correspond to FBI national collection requirements as defined in DIOG Section 5.12. FBI national collection requirements addressed in properly authorized Assessments (See DIOG Section 5.6.3.5) or Predicated Yestigations. (See the Intelligence Policy Implementation Guide (IPG) for specific uirements .) r 'FOUO) Requirements which fall into the second category are known as Positive Foreign -· lligence (PFI) CoIIection Requirements and may only be addressed under the authorities __:~ri bed in this section . Type 6 Assessments opened for the purpose of determining whether a -~ office has the ability to collect on a PFI CoIIection Requirement (See DIOG Section .: ."'.5), and Full Investigations opened for the specific purpose of collecting on PFI Collection __ irements must be predicated on an established PFI Collection Requirement that has been ___ ted and approved by the FBIHQ Directorate oflntelligence (DI) - Domain Collection and . " T Management Section (DCHMS), Domain Collection Program Management Unit P . ill) UC. Preliminary Investigations for the sole purpose of collecting on PFI requirements authorized by the AGG-Dom . A Full PFI Investigation to collect on PFI Collection ___ reme nts must be opened in the 809-814 or 816 classification files. A Full PFI Investigation for the intended purpose of collecting on PFI requirements must be approved by the · Un it Chief (UC). A Full PFI Investigation cannot be opened on oral authority. C O) "The general guidance of the FBI's foreign intelligence collection activities by DNI- !Zed requirements does not limit the FBI's authority to conduct investigations supportable ·i of its other authorities - to investigate federal crimes and threats to the national . -i n areas in which the information sought also fall s under the definition of foreign 9-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY VC'rs1011 Dated Octobtr ~5.2011 UNCLASSIFIE D - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 9 9.1 §9 (U) FOREIGNINTELLIGENCE (U) OVERVIEW (U) Foreign Intelligence defined: Foreign intelligence is "information relating to the capabilities , intentions , or activities of foreign governments or elements thereof , foreign organizations , or foreign persons, or international terrorists." A "Foreign Intelligence Requirement" is a collection requirement issued under the authority of the Director of National Intelligence (DNI) and accepted by the FBI Directorate oflntelligence (DI) . Additionally, the President, a United States Intelligence Community (USIC) office designated by the President , the Attorney General , Deputy Attorney General , or other designated Department of Justice (DOJ) official may levy a foreign intelligence requirement on the FBI. Foreign intelligence collection by the FBI is based upon requirements . (U//FOUO) Foreign intelligence requirements issued by one of the parties listed above and accepted by the FBI DI will fall into one of two categories: (i) those that address national security issues that are within the FBI's core national security mission (FBI collection requirements); and (ii) information relating to the capabilities, intentions , or activities of foreign governments or elements thereof, foreign organizations , foreign persons , or international terrorists which are not within the FBI's core national security mission (PFI Collection Requirements) . (U//FOUO) Requirements which fall into the first category may correspond to FBT national collection requirements as defined in DIOG Section 5.12. FBI national collection requirements are addressed in properly authorized Assessments (See DIOG Section 5.6.3.5) or Predicated Investigations. (See the Intelligence Policy Implementation Guide (IPG) for specific requirements .) (U//FOUO) Requirements which fall into the second category are known as Positive Foreign Intelligence (PFI) Collection Requirements and may only be addressed under the authorities described in this section. Type 6 Assessments opened for the purpose of determining whether a field office has the ability to collect on a PFI Collection Requirement (See DTOG Section - .6.3.5), and Full Investigations opened for the specific purpose of collecting on PFI Collection Requirements must be predicated on an established PFI Collection Requirement that has been accepted and approved by the FBIHQ Directorate of Intelligence (DI) - Domain Collection and HUMINT Management Section (DCHMS), Domain Collection Program Management Unit DCPMU) UC. Preliminary Investigations for the sole purpose of collecting on PFI requirements are not authorized by the AGG-Dom. A Full PFI Investigation to collect on PFI Collection Requirements must be opened in the 809-814 or 816 classification files. A Full PFI Investigation ened for the intended purpose of collecting on PFI requirements must be approved by the DCPMU Unit Chief (UC). A Full PFI Investigation cannot be opened on oral authority . QUO) "The general guidance of the FBI's foreign intelligence collection activities by DNIthorized requirements does not limit the FBI's authority to conduct investigations supportable ...,the basis of its other authorities - to investigate federal crimes and threats to the national urity- in areas in which the information sought also falls under the definition of foreign 9-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver~1on D1tPd October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §9 intelligence." (Attorney General's Guidelines for Domestic FBI Operations (AGG-Dom), Introduction A.3) Accordingly, the AGG-Dom authorizes the collection of foreign intelligence incidental to predicated criminal, counterintelligence, counterterrorism, cyber , and weapons of mass destruction investigations. Incidental collection described above must be documented in the 8151 field office classification file. See DIOG Sections 5.2 and 7.5.A and B. (U//FOUO) A Full PFI Investigation can be opened based solely on a PFI Collection Requirement. The authorized purpose (the PFI Collection requirement) must exist and have been accepted by the FBI. (U) Examples : A) (U//FOUO) The USIC seeks information regarding the intentions of the Republic of X to strengthen its military in the wake of hostile actions by the Government of Y. If FBIHQ DI accepts this requirement as a PFI Collection Requirement, FBIHQ DI will approve a file in the 809-814 or 816 investigative classification series . Any field office which has the capacity to respond to this requirement must operate under the 809-814 or 816 series file. This may be opened as a Full Investigation if authorized by DCPMU . B) (U//FOUO) The USIC seeks information regarding the Government of Y's intentions vis-a-vis the Republic of X. FBIHQ DI accepts this requirement as a PFI Collection Requirement and approves the opening of a file in the 809-814 or 816 investigative classification series. As part of an existing counterintelligence investigation , an operational squad has technical coverage that is yielding information pertinent to this requirement. The operational squad should share relevant foreign intelligence collected during the course of its investigation with the Field Intelligence Group (FIG), which should analyze and disseminate that foreign intelligence information and document its handling of the intelligence in the appropriate 809-814 or 816 classification file. (U//FOUO) FBIHQ DI provides specific guidance in its IPG regarding FBI national collection requirements, FBI field office collection requirements, and PFI requirements. 9.2 (U) PURPOSE AND SCOPE (U//FOUO) As stated above, foreign intelligence is "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorists." The collection of positive foreign intelligence extends the sphere of the FBI's information-gathering activities beyond federal crimes and threats to the national security and permits the FBI to seek information regarding a broader range of matters relating to foreign powers, organizations, or persons that may be of interest to the conduct of the United States' foreign affairs. (AGG-Dom, Introduction A.3) (U//FOUO) While employees may collect positive foreign intelligence in already opened Assessments and Predicated Investigations (incidental collection), this section is focused on the policies and procedures that govern opening and managing Full Investigations for the specific purpose of collecting on PFI Collection Requirements published by the DI. DIOG Section 5.6.3.4 governs opening and managing Type 6 Assessments. Vers10n DJt J· Oltober 15, 2011 9-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 9.3 §9 (U) CIVILLIBERTIESAND PRIVACY (U) Because the authority to collect positive foreign intelligence pursuant to PFI Collection Requirements enables the FBI to obtain information pertinent to the United States' conduct of its foreign affairs, even if that information is not related to criminal activity or threats to the national security, the information collected may concern lawful activities. Accordingly, the FBI must operate openly and consensually with an US Person (USPER), to the extent practicable , when collecting positive foreign intelligence. (AGG-Dom, Introduction A.3) (U) The pursuit oflegitimate investigative goals without infringing upon the exercise of constitutional freedoms is a challenge that the FBI meets through the application of sound judgment and discretion. (U) No investigative activity, including the collection of positive foreign intelligence pursuant to PFI Collection Requirements, may be taken solely on the basis of activities that are protected by the First Amendment or on the race, ethnicity, national origin or religion of the subject or a combination of only those factors . In order to take action intentionally to collect positive foreign intelligence, an FBI employee must open a Full Investigation that is predicated on a PFI requirement. (U) The AGG-Dom present investigators with a number of authorized investigative methods in the conduct of a Full Investigation to collect positive foreign intelligence . Considering the effect on the privacy and civil liberties of individuals and the potential to damage the reputation of individuals, some of these investigative methods are more intrusive than others. The least intrusive method if reasonable based upon the circumstances of the investigation is to be used, but the FBI must not hesitate to use any lawful method consistent with the AGG-Dom. For further explanation of the least intrusive method refer to DIOG Section 4. (U) Moreover, when collecting positive foreign intelligence, as part of a Full Investigation predicated on a PFI requirement, the FBI must operate openly and consensually with an USPER , to the extent practicable. (U) By emphasizing the use of the least intrusive means to collect positive foreign intelligence and by emphasizing the need to operate openly and consensually with an USPER, to the extent practicable, FBI employees can effectively execute their duties while mitigating the potential negative impact on the privacy and civil liberties of all people encountered as part of the collection. This principle is not intended to discourage FBI employees from seeking relevant and necessary positive foreign intelligence, but rather is intended to make sure FBI employees choose the least intrusive- but still reasonable based upon the circumstances of the investigation - from the available options to obtain the information. (U) The Privacy Act may not exempt from disclosure information the FBI collects during Positive Foreign Intelligence Assessments and investigations to qualified U .S. citizens or lawfully admitted permanent residents when personally identifying information about such persons resides in those files. FBI employees should therefore be particularly vigilant about properly classifying any such information and avoiding unnecessary references to, and the documentation of, identifying information about U.S. citizens and lawfully admitted permanent residents in Positive Foreign Intelligence files. 9-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §9 9.4 (U) LEGALAUTHORITY (U) The FBI's legal authority to collect positive foreign intelligence derives from a mixture of administrative and statutory sources. (See E.O. 12333; 50 U.S .C. §§ 401 et seq.; 50 U.S.C. §§ 1801 et seq.; 28 U.S.C. § 532 note [incorporates the Intelligence Reform and Terrorism Protection Act , P.L. 108-458 §§ 2001-2003]). In collecting positive foreign intelligence, the FBI will be guided by collection requirements issued under the authority of the DNI , including the National Intelligence Priorities Framework and the National Human Intelligence (HUMINT) Collection Directives, or any successor directives issued under the authority of the DNI and accepted by FBIHQ DI (PFI Collection Requirements) . 9.4.1 (U) FULL INVEST/GATIONACTIVITIES (U//FOUO) As discussed in Section 7 of the DIOG , the AGG-Dom cites three predication circumstances warranting a Full Investigation, one of which specifically applies to the collection of positive foreign intelligence: "The Full Investigation may obtain foreign intelligence that is responsive to a [positive] foreign intelligence requirement." (U//FOUO) A PFI investigation may only be commenced if the Office of the DNI has levied a foreign intelligence collection requirement on the FBI and the DI has accepted the requirement as one to which the FBI will endeavor to respond to as part of its PFI Program (i.e., PFI Collection Requirements). The FBI is authorized to open a Full Investigation to collect on a USIC intelligence requirement only if it has been accepted and designated by FBIHQ DI as a PFI Collection Requirement. 9.5 (U) GENERALREQUIREMENTSAND FBIHQ STANDARDSFORAPPROVINGTHE OPENINGOF POSITIVEFOREIGNINTELLIGENCE INVESTIGATIONS 9.5.1 (U) GENERALREQUIREMENTSAND PROGRAM RESPONSIBILITIES (U//FOUO) The DCHMS is responsible for promulgating FBI policy and oversight of the Foreign Intelligence Collection Program (FICP). DCHMS , DCPMU will provide notice to the DOJ NSD upon the opening of a positive foreign intelligence Full Investigation. To ensure that all positive foreign intelligence collection is focused on authorized PFI Collection Requirements, only DCPMU may approve the opening of a Full Investigation (809-814 or 816 classifications). Only personnel assigned to FIGs may conduct PFI Full Investigations. Field offices must request, by EC to the DCPMU Unit Chief (UC) approval to open Full Investigations to collect on PFI Collection Requirements . (U//FOUO) If at the time of the opening, or at anytime thereafter , the PFI Full Investigation involves a Sensitive Investigative matter (SIM), the title/caption must contain the words "Sensitive Investigative Matter." (U//FOUO) The DIOG prohibits the use of control files or administrative files to document investigative activity . (See DIOG Appendix J) Version Dated· October 15, 2011 9-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 9.5.2 §9 (U) STANDARDS FOR OPENING A FULL INVEST/GA TION TO COLLECT POSITIVE FOREIGN INTELLIGENCE U TOUO) Before opening or approving a Full Investigation for the purpose of collecting PFI, --e approv ing official must determine whether: A) (U//FOUO) The FBI DI has established an PFI Collection Requirement for opening a Full Investigation; B) (U//FOUO) The Full Investigation is not based solely on the exercise of First Amendment activities or on the race, ethnicity, national origin or religion of the subject or a combination of only such factors; and C) (U//F OUO) The Full Investigation is an appropriate use of personnel and financial resources. FOU O) Additional policies regarding Predicated Investigation involving any foreign ...., as ador, foreign official, foreign student or exchange visitor, protected persons or premises ubje ct may be found in DIOG Appendix G [No Foreign Policy Objection (NFPO)]. 9.6 (U) OPENING DOCUMENTATION, APPROVAL, EFFECTIVE DATE, AND FILE REVIEW . 6.1 (U) OPENING BY A FIELD OFFICE WITH FBIHQ DCPMU UC APPROVAL OR OPENING BY FBIHQ 0 ) The predication for a Full PFI Investigation must be documented in the opening onic communication (EC). A Full PFI Investigation may not be opened on oral authority. 9.6.1. 1 (U) APPROVAL TO OPEN A FULL PFI INVESTIGATION U FOU O) Opened by a Field Office or Opened by FBIHO: DCPMU UC will approve the . ning of a Full Investigation based on PFI Collection Requirements . .6.1.1. 1 (U) EFFECTIVE DATE · FOU O) Opened by a Field Office or Opened by FBIHO: The effective date of the Full - . e tigation is the date the DCPMU UC approves the EC by electronic signature /date =~ erated by Sentinel or by handwriting this/her initials and date on the EC. _,6.1.2 (U) APPROVAL TO OPEN A FULL PFI INVESTIGATION INVOLVING A SENSITIVE INVESTIGATIVE MATTER (SIM) • FOU O) The opening of a Full PFI Investigation involving a SIM: ; . . 1.2.1 (U) SIM FULL PF/ INVEST/GA TION OPENED BY A FIELD OFFICE OUO) The opening in a field office of a Full Investigation to collect PFI involving a :nu t have prior Chief Division Counsel (CDC) review, and approval by the Special =~.' in Charge (SAC) and the DCHMS Section Chief (SC). The notice must identify all ~TI SIMs involved in the investigation , and include the caption on the opening 9-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver5•on Dated: Oc.tober 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §9 communication - "Sensitive Investigative Matter." The DCHMS must notify, in writing, the appropriate NSD official as soon as practicable, but no later than 30 calendar days after the opening of the investigation. See the classified provisions in DIOG Appendix G for additional notice requirements. (U//FOUO) If a SIM arises after the opening of a Full Investigation to collect PFI, the investigation may continue, but the matter must be reviewed by the CDC or OGC and approved by the SAC and DCHMS SC, as soon as practicable, but not more than five (5) business days thereafter to continue the investigation . Notice must be provided to DOJ as indicated above. 9.6.1.2.2 {U) SIM FULL PF/ INVEST/GA TION OPENED BY FBIHQ (U//FOUO) The opening by FBIHQ of a Full Investigation to collect PFT involving a SIM must have prior OGC review, and approval by the DCHMS SC. The notice must identify all known SIMs involved in the investigation, and include the caption on the opening communication - "Sensitive Investigative Matter." The DCHMS must notify, in writing, the appropriate NSD official as soon as practicable, but no later than 30 calendar days after the opening of the investigation. See the classified provisions in DIOG Appendix G for additional notice requirements. (U//FOUO) If a SIM arises after the opening of a Full Investigation to collect PFI, the investigation may continue , but the matter must be reviewed by the OGC and approved by the DCHMS SC, as soon as practicable, but not more than five (5) business days thereafter to continue the investigation . Notice must be provided to DOJ as indicated above. 9.6.1.2.3 (U) EFFECTIVE DATE (U//FOUO) Opened by a Field Office or Opened by FBIHO: The effective date of the Full Investigation involving a SIM is the date the DCHMS SC approves the EC by electronic signature /date generated by Sentinel or by handwriting their initials and date on the EC . 9.6.2 (U) NOTICE 9.6.2.1 (U) FORA TO DO] FULL PFI INVESTIGATION (U//FOUO) Notice to DOJ is required when a Full Investigation to collect information responsive to a foreign intelligence requirement is opened. Notice must be forwarded from DCHMS , DCPMU to the DOJ NSD as soon as practicable but no later than 30 calendar days after the opening of the investigation . (AGG-Dom, Part II.B.5) For Full PFI Investigations that are a SIM, see DIOG Section 9.6.1.2 above . 9.6.3 (U) DURATION (U//FOUO) A Full PFI Investigation may continue for as long as necessary until the requirement is met, or the investigation concludes they cannot satisfy the requirement. Version Dated: October 15, 2011 9-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 9.6.4 (U) FILE 9.6.4.1 (U) §9 REVIEW FULL INVESTIGATIONS (U//FOUO) Supervisory file reviews of a Full PFI Investigation must be conducted at least every 90 days in accordance with DIOG Section 3.4.4 . File reviews for probationary agents must be conducted at least every 60-days. 9. 6.5 (U) ANNUAL 9.6.5.1 (U) LETTERHEAD MEMORANDUM FIELD OFFICERESPONSIBILITY (U//FOUO) All FIGs must submit an annual report on each Full PFI Investigation that was open for any period of time during the previous calendar year. This report is due to FBIHQ DCHMS no later than January 30th of the calendar year following each year during which a Full Investigation is open and must include the following: A) (U//FOUO) The PFI requirement to which the investigation was responding ; B) (U//FOUO) All methods of collection used ; C) (U//FOUO) All Sensitive Investigative Matters encountered ; D) (U//FOUO) A list of all IIR.s by number issued based on information collected during the investigation; E) (U//FOUO) A summary of the PFI collected ; and F) (U//FOUO) The date the Fu! l Investigation was opened and, if applicable, the date it was closed. (U//FOUO) These reports should be submitted by EC. The EC must be uploaded into ACS as designated in the IPG. 9.6.5.2 (U) FBIHQRESPONSIBILITY (U//FOUO) DCHMS must compile data from each field office regarding the scope and nature of the prior year's PFI collection program. No later than April 1st of each year, the DCHMS must submit a comprehensive report of all activity described above to DOJ NSD. The report must include the following information: A) (U//FOUO) The PFI requirement to which the investigations were responding ; B) (U//FOUO) All Sensitive Investigative Matters encountered ; and C) (U//FOUO) The date all Full Investigation were opened and closed (if applicable) . 9-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §9 9.7 (U) STANDARDSFOR OPENINGOR APPROVINGTHE USE OF AN AUTHORIZED INVESTIGATIVEMETHOD IN A FULL POSITIVEFOREIGNINTELLIGENCE INVESTIGATION (U//FOUO) Prior to opening or approving the use of an investigative method in a Full Investigation for the purpose of coJJectingpositive foreign intelligence pursuant to a PF! Collection Requirement , an FBI employee or approving official must determine whether: A) (U//FOUO) The use of the particular investigative method is likely to further the authorized purpose of the Full Investigation; B) (U//FOUO) The investigative method selected is the least intrusive method, ifreasonable based upon the circumstances of the investigation and, if taken relative to an US person (USPER), the method involves open and consensual activities, to the extent practicable; C) (U//FOUO) Open and consensual activity would likely be successful (if it would, covert nonconsensual contact with an USPER may not be approved); and D) (U//FOUO) The investigative method is an appropriate use of personnel and financial resources. 9.8 (U) AUTHORIZEDINVESTIGATIVEMETHODS IN A FULL POSITIVEFOREIGN INTELLIGENCE INVESTIGATION (U//FOUO) Prior to opening or approving the use of an investigative method, an FBI employee and approving official must apply the standards as provided in DIOG Section 9.7. With the exceptions noted below, all lawful methods may be used during a Full Investigation to collect positive foreign intelligence pursuant to PFI Collection Requirements. If actions are to be taken with respect to an USPER, the method used must be open and consensual, to the extent practicable. (U) See DIOG Section 18 for a complete description of the following methods that may be used in Full PFI Investigations. The methods are: A) (U) Public information. (See Section 18.5.1) B) (U) Records or information - FBI and DOJ. (See Section 18.5.2) C) (U) Records or information - Other federal, state, local, tribal, or foreign government agency. (See Section 18.5.3) D) (U) On-line services and resources. (See Section 18.5.4) E) (U) CHS use and recruitment. (See Section 18.5.5) F) (U) Interview or request information from the public or private entities. (See Section 18.5.6) G) (U) Information voluntarily provided by governmental or private entities. (See Section 18.5.7) H) (U) Physical Surveillance (not requiring a court order). (See Section 18.5.8) I) (U) Trash Covers (Searches that do not require a warrant or court order). (Section 18.6.12) J) (U) Consensual monitoring of communications, including electronic communications. (Section 18.6.1) Version Dated: October 15, 2011 9-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §9 (U//FOUO) For those state, local and tribal governments that do not sanction or provide a law enforcement exception available to the FBI for one-party consent recording of communications with persons within their jurisdiction, the SAC must approve the consensual monitoring of communications as an Otherwise Illegal Activity (OIA). Prior to the SAC authorizing the OIA, one-party consent must be acquired. The SAC may delegate the OIA approval authority to an Assistant Special Agent-in-Charge (ASAC) or Supervisory Special Agent (SSA). (U//FOUO) See the classified provisions in Appendix G for additional information. K) (U) Intercepting the communications of a computer trespasser. (Section 18.6.2) L) (U) Closed-circuit television/video surveillance, direction finders, and other monitoring devices. (Section 18.6.3) M)(U) Polygraph examinations. (Section 18.6.11) N) (U) Undercover Operations (Section 18.6.13) 0) (U//FOUO) Pen registers and trap /trace devices for non-USPERs using FISA. (See Section 18.6.9) P) (U) Electronic surveillance using FISA or E.O. 12333. (See Section 18.7.3) Q) (U//FOUO) Searches - with a warrant or court order using FISA or E.O. 12333 § 2.5. The DIOG classified Appendix G provides additional information regarding certain searches. (AGG-Dom, Part V.A.12) (See Section 18.7.1) R) (U) FISA Title VII - Acquisition of positive foreign intelligence information. (See Section 18.7.3) S) (U//FOUO) FISA Order for business records (for records relating to a non-USPER only). (See Section 18.6.7) 9. 9 (U) INVESTIGATIVEMETHODS NOT AUTHORIZEDDURING A FULL POSITIVE FOREIGNINTELLIGENCE INVESTIGATION (U//FOUO) The following investigative methods are not permitted to be used for the purpose of collec ting positive foreign intelligence pursuant to PFI Collection Requirements: A) (U//FOUO) National Security Letters (15 U.S.C. §§ 1681u, 1681v; 18 U.S.C. § 2709; 12 U.S.C. § 34l[a][5][A]; 50 U.S.C. § 436). (Section 18.6.6) B) (U//FOUO) FISA Order for business records (for records relating to an USPER). (Section 18.6.7) C) (U//FOUO) Pen registers and trap /trace devices in conformity with FISA (on an USPER). (Section 18.6.9) D) (U//FOUO) Pen registers and trap /trace devices in conformity with chapter 206 of 18 U.S.C. §§ 3121-3127. (Section 18.6.9) E) (U//FOUO) Mail covers. (Section 18.6.10) F) (U//FOUO) Grand jury subpoenas. (Section 18.6.5) G) (U//FOUO) Administrative subpoenas. (Section 18.6.4) 9-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §9 H) (U//F OUO) Stored wire and electronic communications and transactional records. (Section 18.6.8) 9.10 (U) SENSITIVEINVESTIGATIVEMATTERS (SIM) IN A FULL POSITIVEFOREIGN INTELLIGENCE INVESTIGATION (U//FOUO) The title/caption of the opening or subsequent EC for a Full Investigation for the collection of PFI involving a SIM must contain the words "Sensitive Investigative Matter." DIOG Section 10 contains the required approval authorities and factors to be considered relative to a Predicated Investigation involving a SIM. 9.10.1 (U) SENSITIVEINVEST/GATIVEMATTERS (SIM) (U//FOUO) A SIM is an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security), religious or domestic political organization or individual prominent in such an organization, or news media, an academic nexus, or any other matter which, in the judgment of the official authorizing an investigation, should be brought to the attention of FBIHQ and other DOJ officials. (AGG-Dom, Part VII.N.) As a matter of FBI policy, "judgment" means that the decision of the authorizing official is discretionary. DIOG Section 10 and/or the classified provisions in DIOG Appendix G define domestic public official, political candidate, religious or political organization or individual prominent in such an organization, and news media. (U//FOUO) All Full PFI Investigations involving a SIM must be reviewed by the CDC/OGC, approved by the SAC and the DCHMS SC. 9.10.2 (U) ACADEMICNEXUS (U//FOUO) As a matter of FBI policy, an investigative activity having an "academic nexus" is considered a SIM if: A) (U//FOUO) the investigative activity involves matters related to the responsibilities of an administrator or faculty member employed by any college or university that is located inside the United States, provided the matter under investigation is related to the individual's position at the institution; or B) (U//FOUO) the matter involves any student association recognized and approved by the college or university at which the student association at issue is located, and the college or university is located inside the United States. (U//FOUO) The sensitivity related to an academic institution arises from the American tradition of "academic freedom" (e.g., an atmosphere in which students and faculty are free to express unorthodox ideas and views and to challenge conventional thought without fear of repercussion). Academic freedom does not mean, however, that academic institutions are off limits to FBI investigators in pursuit of information or individuals of legitimate investigative interest. (U//FOUO) For matters not considered a SIM even though there is an academic nexus, see the classified provisions in DIOG Appendix G. Version Dated: October 15, 2011 9-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 9.11 §9 (U) RETENTIONOF INFORMATION (U//FOUO) DCHMS must maintain a database or records systems that permits the prompt retrieval of the status of each positive foreign intelligence collection Full Investigation (open or closed), the dates of opening and closing, and the basis for the Full Investigation. 9.12 (U//FOUO) STANDARDSFORAPPROVINGTHE CLOSINGOF A FULLPOSITIVE FOREIGNINTELLIGENCE INVESTIGATION {U) STANDARDS 9.12.1 (U//FOUO) At the conclusion of a Full positive foreign intelligence Investigation, each of the following items must be documented in the closing communication (EC and/or LHM): A) (U//FOUO) A summary of the results of the investigation; B) (U//FOUO) Whether logical and reasonable investigation was completed (i.e. the matter acquired the positive foreign intelligence information sought); C) (U//FOUO) Whether all investigative methods initiated have been completed and/or discontinued; D) (U//FOUO) Whether all leads set have been completed and/or discontinued; E) (U//FOUO) Whether all evidence has been returned, destroyed or retained in accordance with evidence policy; and F) (U//FOUO) A summary statement of the basis on which the foreign intelligence investigation will be closed, and the selection of C-4 for Administrative Closing, which includes: 1) (U//FOUO) No further investigation is warranted and/or leads have been exhausted; 2) (U//FOUO) Investigation assigned a new file number; or 3) (U//FOUO) Investigation consolidated into a new file number or an existing file number. 9.12.2 (U) APPROVAL REQUIREMENTS U 'FOUO) The appropriate closing supervisor described below must review and approve the ~lo ing communication (as described in Section 9.12.1) to ensure it contains the above-required · o rmation and sufficient details of the investigation on which to base a decision to close the : reign intelligence investigation. The closing supervisor must note on the closing document "C" -~ r close), the closing status 4 (e.g., C-4), and the closing date . The appropriate closing 9.12.2.1 (U) OPENED BY A FIELD OFFICEWITH FBIHQ APPROVAL L OUO) Closing a Full PFI Investigation opened by a field office requires a written :- quest from the FIG SSA and the approval of the DCPMU UC. 9-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vns1on Datt>d October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §9 9.12.2.2 (U) OPENED BY FBIHQ (U//FOUO) Closing a Full PFI Investigation opened by FBIHQ requires approval from the DCPMU UC and notification to the appropriate field office. 9.12.2.3 (U) SIMOPENED BY A FIELD OFFICE WITH FBIHQAPPROVAL (U//FOUO) Closing a PFI Full Investigation opened by a field office involving a SIM requires approval from the SAC and the DCHMS SC. 9.12.2.4 (U) SIMOPENED BY FBIHQ (U//FOUO) Closing a PFI Full Investigation opened by FBIHQ involving a SIM requires approval from the DCHMS SC, and written notification to the appropriate field office . 9.13 (U) OTHER PROGRAMSPECIFICINVESTIGATIONREQUIREMENTS (U//FOUO) To facilitate compliance with investigative program-specific requirements, the FBI employee should consult the relevant division's PG to ascertain any program-specific requirements. However, FBIHQ division PGs may not contradict, alter or otherwise modify the standards established in the DIOG. Version Dated: October 15, 2011 9-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 10 (U//FOUO) SENSITIVEINVESTIGATIVE MATTER(SIM) AND SENSITIVEOPERATIONSREVIEWCOMMITTEE(SORC) 10.1 (U) SENSITIVE INVESTIGATIVE MATTERS (SIM) 10.1.1 {U) OVERVIEW (U) Certain investigative matters should be brought to the attention of FBI management and Department of Justice (DOJ) officials because of the possibility of public notoriety and sensitivity. Accordingly, Assessments and Predicated Investigations involving "sensitive investigative matters" have special approval and reporting requirements. 10.1.2 10.1.2.1 (U) PURPOSE, SCOPE, AND DEFINITIONS (U) DEFINITION OF SENSITIVE INVESTIGATIVE MATTERS (SIM) (U/FOUO) A sensitive investigative matter (SIM) is defined as an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security), a religious or domestic political organization or individual prominent in such an organization, or the news media ; an investigative matter having an academic nexus ; or any other matter which , in the judgment of the official authorizing the investigation, should be brought to the attention of FBI Headquarters (FBIHQ) and other DOJ officials. (Attorney General's Guidelines for Domestic FBI Operations (AGGDom), Part VII .N.) As a matter of FBI policy, "judgment" means that the decision of the authorizing official is discretionary. (U//FOUO) The phrase "investigative matter involving the activities of' is intended to focus on the behaviors and/or activities of the subject , target , or subject matter of the Assessment or Predicated Investigation . The phrase is generally not intended to include a witness or victim in the Assessment or Predicated Investigation . This definition does not , however , prohibit a detennination that the status , involvement , or impact on a particular witness or victim would make the Assessment or Predicated Investigation a SIM under subsection 10.1.2.2.7 below . 10.1.2.2 (U) DEFINITIONS/DESCRIPTIONS OF SIM OFFICIALS AND ENTITIES (U) Descriptions for each of the officials and entities contained in the SIM definition are as follows: 10.1.2.2.1 (U) DOMESTIC PUBLIC OFFICIAL (U/FOUO) A domestic public official is an elected official or an appointed official serving in a judicial , legislative, management , or executive-level position in a Federal, state , local , or tribal government entity or political subdivision thereof. A matter involving a domestic public official is a SIM if the Assessment or Predicated Investigation involves corruption or a threat to the national security. 10-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers10P Dated October l:i, 2011 §10 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (U//FOUO) This definition is intended to exclude lower level positions and most line positions, such as a patrol officer or office secretary from the SIM category , but it does include supervisory personnel (e.g., police Sergeant or Lieutenant). The SIM definition also eliminates the "position of trust" language. 10.1.2.2.2 (U) DOMESTIC POLITICAL CANDIDATE (U/FOUO) A domestic political candidate is an individual who is seeking election to, or nomination for election to, or who has authorized others to explore on his or her behalf the possibility of election to an office in a federal, state, local or tribal governmental entity or political subdivision thereof. As with domestic public officials , a matter involving a political candidate is a SIM if the Assessment or Predicated Investigation involves corruption or a threat to the national security . 10.1.2.2.3 (U) DOMESTIC POLITICAL 0RGANIZA TION OR INDIVIDUAL PROMINENT IN SUCH AN ORGANIZATION (U/FOUO) Domestic political organization includes political parties at any level, political action groups or committees , or committees or groups formed for the purpose of electing an individual to public office or to advocate or educate the public concerning a political or social issue. If the Assessment or Predicated Investigation concerns a person prominent in such an organization , but not the organization itself, it must still be treated as a SIM. 10.1.2.2.4 (U) RELIGIOUS ORGANIZATION OR INDWIDUAL PROMINENT IN SUCHAN 0RGANIZA TION (U//FOUO) Religious organization includes any association of persons whose purpose primary is worship (whether in a church, mosque, synagogue , temple , or other meeting location) or other entity whose principal purpose is the study or advancement of religion. Religious organizations may be organized in a variety of ways , such as an unincorporated association , non-profit corporation, charitable trust, or an association in fact. If the Assessment or Predicated Investigation concerns a person prominent in such an organization , but not the organization itself, it must still be treated as a SIM. 10.1.2.2.5 (U) MEMBER OF THE NEWS MEDIA ORA NEWS ORGANIZATION (U/FOUO) "News media " includes persons and organizations that gather , report , or publish news , whether through traditional means (e.g., newspapers , radio , magazines , news service) or the on-line or wireless equivalent. A "member of the news media" is a person who gathers, reports , or publishes news through the news media. (U//FOUO) The term "News Media" also includes an entity organized and operated for the purpose of gathering , reporting or publishing news . The definition does not, however , include a person or entity who posts information or opinion on the Internet in biogs , chat rooms or social networking sites, such as YouTube , Facebook, or MySpace , unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog). Version Dated: October 15, 2011 10-2 CLA S IFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 (U//FOUO) Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of newspapers or periodicals that make their products available to the public at large in print form or through an Internet distribution . A freelance journalist may be considered to be a member of the media if the journalist has a contract with the news entity or has a history of publishing content. Publishing a newsletter or operating a website does not by itself qualify an individual as a member of the media . Businesses , law firms, and trade associations offer newsletters or have websites; these are not considered news media. As the term is used in the DIOG, "news media" is not intended to include persons and entities that simply make information available. Instead , it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public , uses editorial skills to tum raw materials into a distinct work, and distributes that work to an audience, as a journalism professional. (U//FOUO) If there is doubt about whether a particular person or entity should be considered part of the "news media," the doubt should be resolved in favor of considering the person or entity to be the "news media." (U//FOUO) See the classified provisions in DIOG Appendix G for additional guidance on SIMs. 10.1.2.2.6 (U) ACADEMIC NEXUS (U//FOUO)As a matter of FBI policy, an investigative activity having an "academic nexus" is a SIM if: A) (U//FOUO) the investigative activity involves matters related to the responsibilities of an administrator or faculty member employed by any college or university that is located inside the United States, provided the matter under Assessment/investigation is related to the individual' s position at the institution; or B) (U//FOUO) the matter involves any student association recognized and approved by the college or university at which the student association at issue is located, and the college or university is located inside the United States. //FOUO) The sensitivity related to an academic institution arises from the American tradition of "academic freedom" (i.e., an atmosphere in which students and faculty are free to e press unorthodox ideas and views and to challenge conventional thought without fear of repercussion). Academic freedom does not mean, however , that academic institutions are off limits to FBI investigators in pursuit of information or individuals of legitimate investigative interest. OUO) For matters not considered a SIM even though there is an academic nexus , see the las ified provisions in DIOG Appendix G. 1_; 10.1.2.2.7 (U) OTHER MATTERS F OUO) Any matter that in the judgment of the official authorizing an investigation should brought to the attention of FBIHQ and other DOJ officials is also a SIM. As a matter of :BI po licy, "judgment" means that the decision of the authorizing official is discretionar y. 10-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 10.1.3 (U) FACTORS TO CONSIDERWHEN OPENING ORAPPROVING AN INVEST/GATIVE ACTIVITY INVOLVINGA SIM (U//FOUO) In addition to the standards for approving investigative activity in Sections 5, 6, 7, 8 and 9, the following factors should be considered by (i) the FBI employee who seeks to open an Assessment or Predicated Investigation involving a SIM, as well as by the (ii) Chief Division Counsel (CDC) or Office of the General Counsel (OGC) when reviewing such matters, and (iii) the approving official when determining whether the Assessment or Predicated Investigation involving a SIM should be authorized: A) (U//FOUO) Seriousness /severity of the violation/threat; B) (U//FOUO) Significance of the information sought to the violation/threat; C) (U//FOUO) Probability that the proposed course of action will be successful; D) (U//FOUO) Risk of public exposure , and if there is such a risk, the adverse impact or the perception of the adverse impact on civil liberties and public confidence; and E) (U//FOUO) Risk to the national security or the public welfare if the proposed course of action is not approved (i.e., risk of doing nothing). (U//FOUO) In the context of a SIM, particular care should be taken when considering whether the planned course of action is the least intrusive method if reasonable based upon the circumstances of the investigation. 10.1.4 (U) OPENINGDOCUMENTATION,APPROVAL, NOTICE, AND CHANGEIN SIM STATUS (U//FOUO) If at the time of the opening, or at anytime thereafter, the Assessment involves a SIM, the title/caption must contain both the words "Assessment" and "Sensitive Investigative Matter." If at the time of the opening, or at anytime thereafter, the Predicated Investigation involves a SIM, the title/caption must contain the words "Sensitive Investigative Matter." Conversely, if a matter that has been designated as a SIM no longer remains a SIM due to a change in the facts and circumstances of the assessment or investigation , this change of designation must be made in the file and the caption. (U//FOUO) The following are required approval and notification levels for investigative activities involving SIMs: 10.1.4.1 10.1.4.1.1 (U) REVIEW AND APPROVAL OF SIM ASSESSMENTS BY A FIELD OFFICE (U) TYPE 1 & 2 ASSESSMENTS (U//FOUO) An FBI employee may open a Type 1 & 2 Assessment, as described in Section 5.6.3.1, without prior supervisory approval. A Type 1 & 2 Assessment involving a SIM must be reviewed by the CDC and approved by the Special Agent-in-Charge (SAC) as soon as practicable , but no later than five (5) business days after the opening to authorize the Assessment to continue. Version Dated October 15, 2011 10-4 CL SSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 10.1.4.1.2 §10 (U) TYPE 3 AND 4 ASSESSMENTS (U//FOUO) An FBI employee must obtain the following review and approval to open a Type 3 and 4 Assessment as a SIM: CDC review and SAC approval. If a SIM arises after the opening of a Type 3 or 4 Assessment, the Assessment may continue, but the matter must be reviewed by the CDC and approved by the SAC as soon as practicable, but no later than five (5) business days after the SIM arises to authorize the Assessment to continue. (See DIOG Sections 5.6.3.2.4 and 5.6.3.3.4.) 10.1.4.1.3 (U) TYPE 5 ASSESSMENTS (U//FOUO) An FBI employee must obtain the SAC's prior approval to open a Type 5 Assessment on a sensitive potential confidential human source (CHS). If it is determined after the opening of a Type 5 Assessment that the individual is a sensitive potential CHS, the Assessment may continue, but the matter must be approved by the SAC as soon as practicable, but no later than five (5) business days after this determination is made to authorize the Assessment to continue. (See DIOG Section 5 .6.3 .4.4.1) 10.1.4.1.4 (U) TYPE 6 ASSESSMENTS (U//FOUO) An FBI employee must obtain the following review and approval to open a Type 6 Assessment as a SIM: CDC review, SAC approval, and Domain Collection and HUMINT Management Section (DC HMS) Section Chief (SC) approval. If the SIM arises after the opening of a Type 6 Assessment, the Assessment may continue, but the matter must be reviewed by the CDC and approved by the SAC and DCHMS SC as soon as practicable, but no later than five (5) business days after the SIM arises to authorize the Assessment to continue. (See DIOG Section 5.6.3.5.4) (U//F OUO) FBIHQ must receive notice and approve all Type 6 Assessments whether or not they involve a SIM . 10.1.4.2 (U) NOTICE FOR SIM ASSESSMENTS BY A FIELD OFFICE //FOUO) Notice for SIM Assessments-There is no requirement to notify FBIHQ, DOJ, or the United States Attorney (USA) of the opening of an Assessment involving a SIM . (AGGDom, Part II.B.5.a) 10.1.4.3 (U) REVIEW AND APPROVAL OF SIM PREDICATED INVESTIGATIONS BY A FIELD OFFICE 10.1.4.3.1 (U) PREDICATED INVEST/GA TIONS INVOLVING A SIM (U//FOUO) CDC review and SAC approval. (See Sections 6.10 and 7.10) 10.1.4.3.2 (U) ENTERPRISE INVEST/GA TIONS INVOLVING A SIM (U//FOUO) CDC review, SAC approval, and SC approval. (See Section 8.6) 10-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY erston Dated October 1.:, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 (U) POSITIVE 10.1.4.3.3 FOREIGN INTELLIGENCE FULL INVEST/GA TIONS INVOLVING A SIM (U//FOUO) CDC review, SAC approval, and DCHMS SC approval. (See DIOG Sections 9.6 and 9.10) 10.1.4.4 (U) NOTICE 10.1.4.4.1 FOR SIM PREDICATED INVESTIGATIONS BYA FIELD OFFICE (U) NOTICE FOR SIM PREDICATED INVESTIGATIONS (U//FOUO) The field office must provide written notification (EC and a disseminable LHM) to the responsible FBIHQ unit and section within 15 calendar days after the opening of a SIM Predicated Investigation . The field office also must notify the appropriate United States Attorney's Office (USAO), in writing, unless such notification is inappropriate under the circumstances (e.g., a public corruption investigation of a person who is personally close to the Unites States Attorney (USA) , or the matter is a counterintelligence or espionage investigation. (See the CD PG for details concerning notice in counterintelligence and espionage investigations .) If notice is not provided to the USAO under the circumstances described above, the field office must explain those circumstances in the written notice to FBIHQ. The responsible FBIHQ section must notify , in writing, the appropriate DOJ Criminal Division official or NSD official. The notification must be made as soon as practicable but no later than 30 calendar days after the opening of the investigation. The notice must identify all known SIMs involved in the investigation. See the classified provisions in DIOG Appendix G for additional notice requirements . (U//FOUO) If a SIM arises after the initiation of a Predicated Investigation , investigati ve activity may continue, but the matter must be reviewed by the CDC and approved by the SAC (and SC, if the matter is an Enterprise Investigation or PFI Full Investigation) as soon as practicable , but not more than five (5) business days thereafter to continue the investigation . Written notice must be furnished to the FBIHQ unit and section and to the appropriate USAO , DOJ Criminal and/or NSD, as specified above. 10.1.4.4.2 (U) NOTICE FOR SIM ENTERPRISE INVESTIGATIONS (U//FOUO) See DIOG Section 8.6 for notice requirements . (U) NOTICE 10.1.4.4.3 FOR SIM POSITIVE FOREIGN INTELLIGENCE FULL INVEST/GA TIONS (U//FOUO) See DIOG Section 9.9 for notice requirements. 10.1.4.5 (U) REVIEW AND APPROVAL 10.1.4.5.1 (U) TYPE 1 &2 OF SIM ASSESSMENTS OPENED BY FBIHQ ASSESSMENTS (U//FOUO) An FBI employee may open a Type 1 & 2 Assessment , as described in Section 5.6.3.1, without prior supervisory approval. An Assessment involving a SIM must be reviewed by the OGC and approved by the SC as soon as practicable , but no later than five (5) business days after the opening to continue the Assessment. If a SIM arises after the initiation of an Assessment , investigative activity may continue , but the matter must be reviewed by the Vu '>10'1 D Oc er 'J 21)l 1 10-6 CL SSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 OGC and approved by the SC as soon as practicable, but not more than five (5) business days thereafter to continue the Assessment. 10.1.4.5.2 (U) TYPE 3 AND 4 ASSESSMENTS (U//FOUO) An FBI employee must obtain the following reviews and prior approvals to open a Type 3 or 4 SIM Assessment: OGC review and SC approval. If a SIM arises after the opening of a Type 3 or 4 Assessment, the Assessment may continue , but the matter must be reviewed by the OGC and approved by the SC as soon as practicable, but no later than five (5) business days thereafter to continue the Assessment. 10.1.4.5.3 (U) TYPE 5 ASSESSMENTS (U//FOUO) An FBI employee must obtain his/her SC's approval to open a Type 5 Assessment on a sensitive potential CHS . If it is determined after the opening of a Type 5 Assessment that the individual is a sensitive potential CHS , the Assessment may continue , but the matter must be approved by the employee's SC as soon as practicable , but no later than five (5) business days after this determination. (See Section 5.6.3.4.4 .1) 10.1.4.5.4 (U) TYPE 6 ASSESSMENTS (U//FOUO)An FBI employee must obtain the following reviews and approvals to open a Type 6 Assessment as a SIM: OGC review and SC approval. If a SIM arises after the opening of a Type 6 Assessment, the Assessment may continue , but the matter must be reviewed by OGC and approved by the SC as soon as practicable , but no later than five (5) business days thereafter to continue the Assessment. (See Section 5.6.3 .5.4) 10.1.4.6 (U) NOTICE REQUIREMENTS FOR SIM ASSESSMENTS BY FBIHQ (U//FOUO) There is no requirement to notify DOJ or the United States Attorney of the opening of an Assessment involving a SIM (including opening a sensitive potential CHS). (AGG-Dom, Part II.B.5.a) 10.1.4.6.1 (U) REVIEW 10.1.4.6.2 (U) PREDICATED AND APPROVAL OF SIM PREDICATED INVESTIGATIONS BY FBJHQ INVESTIGATIONS INVOLVING A SIM (U//FOUO) OGC review and SC approval. (See DIOG Sections 6.7 , 6.10; 7.7 and 7.10) 10.1.4.6.3 (U) ENTERPRISE INVESTIGATIONS INVOLVING A SIM (U//FOUO) OGC review and SC approval. (See DIOG Sections 8.6) 10.1.4.6.4 (U) POSITIVE FOREIGN INTELLIGENCE FULL INVESTIGATIONS INVOLVING A SIM (U//FOUO) OGC review and SC approval. (See DIOG Section 9.9) 10-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15 2011 l!. T :\ --IFIED-FOR OFFICIAL USE ONLY Dome ti Inve tigations and Operations Guide 10 10.1.4.7 10.1.4. 7.1 (U) NOTICE FOR SIM (U) NOTICE PREDICATED INVESTIGATIONS BY FBIHQ FOR SIM PREDICATED INVEST/GA TIONS (U//F OUO) The responsible FBIHQ section must provide written notification (EC and a disseminable LHM) to any appropriate field office within 15 calendar days after the opening of a SIM Predicated Investigation; the USAO, unless such notification is inappropriate under the circumstances, or the matter is a counterintelligence or espionage investigation (See the CD PG for details concerning notice in counterintelligence and espionage investigations.); and the appropriate DOJ Criminal Division official or NSD official, as soon as practicable, but no later than 30 calendar days after the opening of the investigation. If notice is not provided to the USAO under the circumstances described above, FBIHQ must explain those circumstances in the written notice to the field office(s) and DOJ. The notice must identify all known SIMs involved in the investigation . See the classified provisions in DIOG Appendix G for additional notice requirements. (U//FOUO) If a SIM arises after the initiation of a Predicated Investigation, investigative activity may continue, but the matter must be reviewed by OGC and approved by the SC as soon as practicable, but not more than five (5) business days thereafter to further continue the investigation. Written notice must be furnished to the appropriate USAO, DOJ Criminal Division and/or NSD, as specified above. 10.1.4.7.2 (U) NOTICE FOR SIM ENTERPRISE INVESTIGATIONS (U//FOUO) See DIOG Section 8.6 for notice requirements. 10.1.4.7.3 (U) NOTICE FOR SIM FULL POSITIVE FOREIGN INTELLIGENCE INVEST/GA TIONS (U//FOUO) See DIOG Section 9.9 for notice requirements. 10.1.4.8 (U) CHANGE IN SIM STATUS (U//FOUO) If during an Assessment or Predicated Investigation it is determined that the matter is no longer a SIM, an EC or similar document removing the SIM designation from the investigation must be filed setting forth the change in circumstances justifying removal of the SIM designation. The designation of "Sensitive Investigative Matter" will no longer be necessary in future communications (e.g., will no longer appear in the caption or the synopsis section of an EC). 10.1.4.8.1 (U) DOCUMENTATION (U//FOUO) The FBI employee must: A) (U//FOUO) In Type 1 & 2 Assessments: Submit an updated FD-71 or Guardian that removes the "Sensitive Investigative Matter" option on the form. The FD-71 or Guardian must be approved by the supervisor responsible for the Assessment, reviewed by the CDC, and approved by the SAC. No notice to FBIHQ is required. B) (U//FOUO) In Type 3 through 6 Assessments: Version Dated: October 15, 2011 10-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 1) (U//FOUO) Opened by a Field Office - Submit an EC (for Type 5 Assessments, an EC or a successor form in DELTA) that must be approved by the supervisor responsible for the Assessment, reviewed by the CDC, and approved by the SAC. No notice to FBIHQ is required. 2) (U//FOUO) Opened by FBIHQ - Submit an EC that must be approved by the appropriate UC responsible for the investigation, reviewed by OGC, and approved by the SC0 C) (U//FOUO) Predicated Investigations: 1) (U//FOUO) Opened by a Field Office - Submit an EC that must be approved by the supervisor responsible for the investigation, reviewed by the CDC, and approved by the SAC. For Predicated Investigations, notification must be provided to the same FBIHQ entities (appropriate Unit and Section) that received notice of the SIM. 2) (U//FOUO) Opened by FBIHQ - Submit an EC that must be approved by the appropriate UC responsible for the investigation, reviewed by OGC, and approved by the SC. D) (U//FOUO) Enterprise Investigations: 1) (U//FOUO) Opened by a Field Office - Submit an EC that must be approved by the supervisor responsible for the investigation, reviewed by the CDC, and approved by the SAC and the appropriate SC. 2) (U//F OUO) Opened by FBIHQ - Submit an EC that must be approved by the appropriate UC responsible for the investigation, reviewed by OGC, and approved by the SC. E) (U//FOUO) Positive Foreign Intelligence Full Investigations: 1) (U//FOUO) Opened by a Field Office - Submit an EC that must be approved by the appropriate supervisor, reviewed by the CDC, approved by the SAC and the appropriate DI UC. 2) (U//FOUO) Opened by FBIHQ - Submit an EC that must be approved by the appropriate UC responsible for the investigation, reviewed by OGC, and approved by the DI SC. 10.1.4.9 10.1.4. 9.1 (U) CLOSING SIM (U) SIM INVESTIGATIONS ASSESSMENTS CLOSED BY A FIELD OFFICE A) (U//FOUO) Type 1 & 2 Assessments -These SIM Assessments must be closed on the FD-71 or FD- 71 a ( Guardian) with approval of the supervisor responsible for the investigation and the SAC. (See DIOG Section 5.6.3.1) B) (U//FOUO) Type 31 4, and 5 Assessments -The closing EC (or successor form in DELTA for Type 5 Assessments) must be approved by the supervisor responsible for the investigation and the SAC. (See DIOG Section 5.6.3.2, 3, and 4) C) (U//FOUO) Type 6 Assessments - The closing EC must be approved by the supervisor responsible for the investigation, SAC and the DI SC. (See DIOG Section 5.6.3.5) 10.1.4.9.2 (U) SIM PREDICATED INVESTIGATIONS CLOSED BY A FIELD OFFICE ( /FOUO) The closing standards, approvals and notice requirements for SIM Predicated In estigations, including Enterprise Investigations and foreign intelligence Full Investigations, are specified in DIOG Sections 6.12; 7.12; 8.9; and 9.12 above. 10-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver;10n Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 (U) SIM 10.1.4.9.3 ASSESSMENTS CLOSED BY FBIHQ A) (U//FOUO) Type 1 & 2 Assessments -May be closed on the FD-71 or FD-71a (Guardian) with the approval of the UC responsible for the investigation and his/her SC. B) (U//FOUO) Type 31 41 and 5 Assessments -The closing EC (or successor form in DELTA for Type 5 Assessments) must be approved by the UC responsible for the investigation and his/her SC. C) (U//FOUO) Type 6 Assessments - The closing EC must be approved by the DI UC responsible for the investigation and his/her DI SC. (U) SIM 10.1.4.9.4 PREDICATED INVEST/GA TIONS CLOSED BY FB/HQ (U//FOUO) The closing standards, approvals and notice requirements for SIM Predicated Investigations, including Enterprise Investigations and Full foreign intelligence investigations, are specified in DIOG Sections 6.12; 7.12; 8.9; and 9.12 above. 10.1.5 (U) DISTINCT/ON BETWEEN SIM AND SENSITIVE CIRCUMSTANCE IN UNDERCOVER OPERATIONS (U//FOUO) The term "sensitive investigative matter," as used in the DIOG, should not be confused with the term "sensitive circumstance," as that term is used in undercover operations . "Sensitive circumstance" relates to an undercover operation requiring FBIHQ approval. A comprehensive list of sensitive circumstances for criminal activities is contained in the Attorney General's Guidelines on FBI Undercover Operations and in Section 18 of the DIOG. The Criminal Undercover Operations Review Committee (CUORC) and the national security Undercover Review Committee (UCRC) must review and approve undercover operations that involve sensitive circumstances. The policy for undercover operations is described in DIOG Section 18.6.13, the Field Guide for Undercover and Sensitive Operations (FGUSO), National Security Undercover Operations Policy Implementation Guide (NSUCOPG), and the FBIHQ operational division program implementation guides. 10.1.6 (U) DISTINCTION BETWEEN SIM AND SENSITIVE UNDISCLOSED PARTICIPATION (U//FOUO) The term "sensitive investigative matter," as used in the DIOG, should not be confused with "sensitive UDP (undisclosed participation)." The rules regarding "sensitive investigative matter" and "sensitive UDP" (see DIOG Section 16.2.3.5), while similar, must be applied independently. The SIM designation applies to the overall investigation of which FBI and DOJ officials should be aware due to potential public notoriety and sensitivity. Sensitive UDP, on the other hand, applies to participation by employees or CHSs in lawful organizations that are designated as sensitive . Sensitive UDP can occur in either SIM or non-SIM designated investigations because sensitive UDP focuses on the activity (UDP) - not on the type of investigation in which it is taking place. Certain investigative or intelligence activity, particularly in situations involving academic institutions or student groups, may be covered by one or both these rules. The following scenarios demonstrate how these policies are to be applied: Version Dated: October 15, 2011 10-10 UNCL SSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 10.1.6.1 (U) §10 SCENARIOS (U/FOUO) Scenario 1: An undercover employee (UCE) or confidential human source (CHS) registers as a student at a university and attends classes as part of an investigation of a professor who is alleged to be participating in fraud regarding a federal grant for his academic research. (U//FOUO) Response 1: This activity would constitute a SIM because it is an investigati ve matter involving the activities of a faculty member employed by a university located in the United States and the matter under investigation is related to his position. This would also involve sensitive UDP because the UCE or CHS would be participating in the activities of the academic institution in an undisclosed capacity while registering and attending classes. See Section 16.2.3.A. (UIFOUO) Scenario 2: A UCE or CHS registers and attends classes at a university in order to assist in the investigation of the activities of a professor , who is the subject of an international terrorism investigation unrelated to his status as a professor. (U/IFOUO) Response 2: This investigation would not constitute a SIM, because the investigation does not involve the activities of a university administrator or faculty member related to his position at the institution , nor does the matter involve any student associat ion recognized and approved by the institution. This matter would , however , involve a sensiti ve UDP, because the UCE or CHS would be participating in the activities of the academic institution in an undisclosed capacity while registering and attending classes . (UIFOUO) Scenario 3: A domestic public official is alleged to have taken kickbacks from a local contractor for a large construction project. An employee attends a public meeting of the zoning board (chaired by the public official) to see if the contractor will try to meet with the public official. (U/FOUO) Response 3: This investigation would constitute a SIM because it is focusing on the allegations of corruption by a public official. The employee's attendance at the public board meeting is not sensitive UDP, because the employee is at public event on the same terms and conditions as members of the general public. 10.2 (U//FOUO) SENSITIVE OPERATIONS REVIEW COMMITTEE TOU O) At the request of the Director , a new joint DOJ/ FBI oversight committee , the =ensitive Operations Review Committee (SORC) , has been established to review and monitor -~ rain aspects of FBI investigative activities that are not within the purview of other oversight _ mmitt ees, particularly with regard to Assessments . The SORC is described as follows: 1 0.2.1 (U) MEMBERSHIP AND STAFFING A) (U//F OUO) Chair: An Executive Assistant Director from the National Security Branch (NSB) or Criminal Cyber Response Services Branch (CCRSB)-depending on which program has the majority of activities being reviewed at the session. B) (U) Members: 10-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY \< rs1on Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 1) (U//FOUO) FBI: Assistant Directors or designated Deputy Assistant Directors for the Counterterrorism Division , Counterintelligence Division , Cyber Division , Criminal Investigative Division and Directorate of Intelligence ; General Counsel; Assistant Director of the Office of Integrity and Compliance; Assistant Director of the Inspection Division; and any other appropriate representative , given the issue presented to the SORC. 2) (U//FOUO) DOJ : Assistant Attorneys General of the National Security Division (NSD) and the Criminal Division (CRM) or their senior-level designees , and any other appropriate representative, given the issue being considered by the SORC . C) (U//FOUO) Advisors: The Unit Chief or a designee of the FBI's Corporate Policy Office (CPO) will serve as a policy advisor to the SORC. In addition , DOJ's Chief Privacy and Civil Liberties Officer or a designee will also serve as an advisor to the SORC . D) (U//FOUO) Staff: The staff of the SORC shall be from the executive staffs of the Executive Assistant Directors of the NSB and the CCSB . Proposals from the NSB shall be handled by its executive staff; proposals from CCSB shall be handled by its executive staff. The staffs will be collectively referred to here as "SORC Staff." The SORC Staff is responsible for ensuring that FBI and DOJ members of the SORC have the information required to perform their SORC duties and are kept fully informed of process developments in matters reviewed by the SORC. 10.2.2 (U) FUNCTION (U//FOUO) The SORC will review and provide recommendations to the Director on matters submitted, as described below. 10.2.3 (U) R EVIEW AND R ECOMMENDATION (U//FOUO) The SORC shall review sensitive activities in the categories described below and provide recommendations to the Director, who shall be the approval authority: A) (U//FOUO) Except for Sensitive Undisclosed Participation (sensitive UDP) conducted as part of an authorized Group I Undercover Operation , all requests for authorization for a confidential human source (CHS) to engage in sensitive UDP or for an FBI employee to engage in sensitive UDP that is intended to influence the exercise of First Amendment rights by members of the organization or when the sensitive UDP has been judged by the Office of the General Counsel (OGC) as likely to influence the exercise of First Amendment rights by members of the organization , regardless of prior membership or participation status by the CHS or FBI employee ; (U//FOUO) Note: Criminal Undercover Operations Review Committee (CUORC) and National Security Branch (NSB) Undercover Review Committee (UCRC) must provide notice to the SORC of all approved Group I Undercover Operations that include sensitive UDP. B) (U//FOUO) Any activity in the United States that is likely to have a significant impact on matters within the jurisdiction of another country , which is conducted without notice to that country and which is not reviewed under another formal process ; C) (U//FOUO) Any FBI Headquarters (FBIHQ)-directed national or regional Assessment or intelligence collection initiative that could be perceived as ethnic or racial profiling by a reasonable member of the American public with knowledge of the facts and circumstances available or likely to be available to the public ; Version Dated: October 15, 2011 10-12 UN CLASSIFIED - FOR OFFICIAL U SE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 D) (U//FOUO) Any proposed Assessment, Predicated Investigation, or intelligence collection, not subject to review under other formal processes that, in the judgment of the official authorizing the activity, could be perceived by a reasonable member of the American public with knowledge of the facts and circumstances available or likely to be available to the public as an unwarranted intrusion into the privacy or civil liberties of United States persons (USPERs), or that poses a significant risk of civil liability against the United States or individual federal employees; or E) (U//FOUO) Other matters of a highly sensitive nature that will not be reviewed through other review mechanisms and which, in the judgment of the official authorizing the activity , should be reviewed by the SORC. For example, in criminal matters, The Attorn ey General Guidelines on FBI Undercov er Activities (AGG-UCO), Paragraph IV.D.6 provides a review opportunity and process for sensitive investigative matters. A DOI or FBI official authorized to refer matters under that paragraph should consider whether the matter is limited to the use of an undercover employee , CHS or cooperating subject. If so, the matter should be referred to the CUORC. Other matters having a broader impact on FBI investigative policy or activities should be referred to the SORC. 10.2.3.1 (U) FACTORS TO CONSIDER FOR REVIEW AND RECOMMENDATION (U//FOUO) In addition to factors unique to the proposal being considered, the SORC will consider the following in determining whether to recommend that a proposed activity be approved: A) (U//FOUO) Seriousness /severity of the violation/threat being investigated; B) (U//FOUO) Significance of the information sought to the violation/threat being investigated ; C) (U//FOUO) Probability that the proposed course of action will be successful ; D) (U//FOUO) Risk of public exposure , and if there is such a risk, the likely impact on public confidence in the FBI ; E) (U//FOUO) Whether , and the extent to which, the proposed course of action may impact civil liberties, privacy, or constitutional rights ; F) (U//FOUO) Risk to the national security or the public welfare if the proposed course of action is not approved (i.e., risk of doing nothing) ; G) (U//FOUO) Whether relevant legal and policy restrictions have been identified and considered and the investigators have a plan to addres s such issues; H) (U//FOUO) Whether there are less intrusive feasible means reasonably available; and I) (U//FOUO) Whether reasonable mitigation measures have been considered and imposed . 10.2.3.2 (U) PROCESS FOR REVIEW AND RECOMMENDATION (U/FOUO) The immediate nature of investigating sensitive matters necessitates quick action on proposals. Accordingly , the entire SORC process should , absent unusual circumstances, be completed within 30 calendar days of the initial submission by the field office or FBIHQ . (U//FOUO) A field office or FBIHQ component must submit a proposal by electronic communication (EC) to the applicable FBIHQ operational division section chief. The FBIHQ operational division must forward the proposal to OGC within 3 business days. The field 10-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versmn Dated October l 'i 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 office is encouraged to consult with the operational division regarding the merits of the proposal before submitting it in order to facilitate expeditious processing at FBIHQ. A) (U//FOUO) The applicable FBIHQ operational division must consult with the OGC to determine whether there are any legal or significant policy prohibitions to the proposed activity , to include whether the activity is likely to influence the exercise of First Amendment rights by members of an organization. Within 5 business days the OGC must determine whether there are any legal prohibitions to the proposed activity. If there are none, OGC must submit the proposal to the SORC Staff. If OGC raises policy concerns , OGC must include an addendum to the proposal describing those concerns to the SORC staff. B) (U//FOUO) Upon receipt of the EC and OGC ' s authorization to submit the proposal , the SORC Staff must place the proposal on the agenda for the next SORC meeting. SORC meetings are scheduled monthly but can be supplemented by ad hoc meetings if necessary. C) (U//FOUO) Seven calendar days prior to a scheduled SORC meeting , the SORC Staff must circulate the agenda and pending proposals to SORC members . Each proposal must contain all relevant information , including the following : a detailed description of the proposal; the proponent's explanation for the proposal and an estimate of the period of time for which it would be maintained; OGC ' s analysis of any significant policy concerns to the proposed activity; and a description of procedures to minimize the acquisition, retention, and dissemination of information regarding USPERs that does not relate to the matter under investigation or to other authorized FBI purposes but that might be incidentally collected and retained absent such procedures. In the case of an ad hoc meeting , the proposal requiring review should be circulated at least 24 hours prior to the meeting . D) (U//FOUO) SORC meetings are to be conducted with the expectation that recommendations will be issued when proposals are presented. If discussion reveals that additional information is required to formulate a recommendation , the SORC Staff is required to facilitate access to all information requested by the SORC or by any SORC member. Because SORC members will receive proposal materials in advance and have the opportunity to consult with appropriate FBI or DOJ personnel prior to meeting on a proposal , SORC members, or assistants attending meetings in their place, are expected to make a recommendation on the proposals at the meeting. [Note: Meetings that do not result in a recommendation on a proposal because members wish to consult others prior to acting should be rare.] E) (U//FOUO) If there is no consensus among the SORC members on whether the proposal should be approved, the SORC recommendation must provide a fair recitation of the divergent views. F) (U//FOUO) Once the SORC has made its recommendation, the SORC Staff must submit the proposal through the appropriate Executive Assistant Director to the Director with the SORC's recommendation for approval or disapproval , together with any changes or amendments to the proposal that the SORC recommends. G) (U//FOUO) For each proposal, at the next SORC meeting the SORC Staff must ensure that SORC members are notified whether the Director decided to adopt the recommendation , reject the recommendation , or consult with the Office of the DAG. Should the Director adopt a proposal that either the Assistant Attorney General of the NSD or the Assistant Attorney General of the CRM (or one of their designees) has recommended against , the SORC Staff must notify the relevant Assistant Attorney(s) General. By EC, SORC Staff must notify the submitting office and sponsoring division in a timely manner of the Director's decision. Version Dated October 15, 2011 10-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 (U) EMERGENCYAUTHORIZATION 10.2.4 (U//FOUO) When necessary to seize an operational opportunity, in investigations where SORC consideration and Director approval would otherwise be required, emergency approval may be granted by the SAC or FBIHQ Deputy Assistant Director with written notice to the SORC Staff within 48 hours of granting such approval. Unless a SORC member objects to the operation upon receiving such notice from the SORC Staff, the operation may continue until it is reviewed at the next scheduled SORC meeting, when the SORC must make a formal recommendation to the Director whether the activity should continue. If, however, a SORC member objects to the operation upon receiving notice, an ad hoc meeting must be called. 10.2.4.1 (U) NOTICE/OVERSIGHT FUNCTION OF SORC (U//FOUO) To facilitate its ability to review and provide recommendations to the Director about certain sensitive UDP as described in paragraph C. l, above, the SORC will also receive notice by EC of the following other forms of UDP: A) (U//FOUO) In a Predicated Investigation involving non-sensitive UDP , any approval to task a CHS or FBI employee to engage in UDP that (1) is intended to influence the exercise of First Amendment rights by members of the organization; or (2) OGC has determined is likely to influence the exercise of First Amendment rights by members of the organization. B) (U/FOUO) In a Predicated Investigation involving either sensitive or non-sensitive UDP , any approval to task a CHS or FBI employee to engage in UDP that may influence the exercise of First Amendment rights by members of the organization but which OGC has determined is not likely to influence the exercise of such rights. C) (U//FOUO) In a Predicated Investigation involving sensitive UDP, any approval to task a CHS or FBI employee to engage in UDP that will influence the activities of an organization but which OGC has determined is not likely to influence the exercise of First Amendment rights by members of the organization . D) (U//FOUO) In an Assessment or Predicated Investigation involving sensitive UDP, any approval to task a CHS or FBI employee to join an organization or participate in its activities and obtain information. E) (U//FOUO) In an Assessment involving sensitive UDP, any approval to task a CHS to obtain information that is not generally known to regular members or participants , regardless of prior membership or participation. (U//FOUO) Not e: Notices of UDP falling into any of the above-listed categories must be provided by the approving official by EC to the appropriate SORC staff within 10 days of approval. The SORC members and chairs will receive periodic reports on such UDP from the SORC staff on a schedule and in a form to be determined by the SORC. F) (U//FOUO) The SORC may task FBI divisions or field offices to provide it: 1) (U//FOUO) Information regarding any FBI investigative activity that will assist in its oversight function; 2) (U//FOUO) Information regarding any Assessment involving a sensitive investigative matter (SIM) that has received unwanted or unfavorable press exposure ; and 3) (U//FOUO) Information regarding operations designated as national security pecial events . 10-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY - ----=--------- - - UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §10 G) (U//FOUO) The SORC must receive notice of any proposal to use pattern-based data mining queries or other analysis of electronic databases using two or more search criteria designed to discover or locate a predictive pattern or anomaly indicative of terrorist or criminal activity on the part of any individual or individuals (as defined in Corporate Policy Directive 031 OD). This includes data mining conducted during counterintelligence Assessments or investigations or other national security matters. Any such analysis based solely on racial, ethnic, national origin or religious characteristics is strictly prohibited. A Privacy Threshold Analysis (PTA) for the activity must be completed and forwarded to the Privacy and Civil Liberties Unit, OGC, in conjunction with notifying SORC of the pattern-based data mining. (Note: For purposes of this requirement, pattern-based data mining does not include activities using one or more personal identifiers to identify an individual or analysis designed to discover links between a specific subject and unknown individuals or entities, even if the subject's actual identity is not yet known. Pattern-based data mining does not include queries or analysis designed solely to identify human sources of intelligence nor does it include activities designed to identify an individual or individuals associated with criminal or terrorist activity that has already occurred. For example, database queries using multiple criteria to identify foreign visitors to the United States of a certain age and gender from specific foreign countries who may engage in espionage is pattern-based data mining within the meaning of the statute. In contrast, database queries using criteria such as physical description and motor vehicle ownership to identify possible suspects in a kidnapping do not constitute pattern-based data mining, because the queries are being used to investigate a crime that has already occurred. Queries designed to identify individuals or entities who have had contact with a specific individual are not pattern-based data mining; rather, such queries are subject-based data mining, even if the specific individual's actual identity is presently unknown. H) (U//FOUO) Senior Executives from the FBI or DOJ may submit other items to the SORC as deemed appropriate to the executive. 10.2.5 (U) LOGISTICS (U//FOUO) The Executive Assistant Director for the NSB is responsible for all logistical support required for the proper functioning of the SORC (i.e., schedule meetings, provide place for meetings, draft agendas, record keeping and retention functions, all necessary communications, etc.). The CPO and the OGC will assist in establishing the logistical support required for the SORC. Version Dated: October 15, 2011 10-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §11 11 (U) LIAISONACTIVITIESAND TRIPWIRES 11.1 (U) OVERVIEW (U//FOUO) FBI employees are encouraged to engage in liaison with the general public, private entities, and with local, state, federal, tribal, and foreign government agencies for the purpose of building partnerships. As part of our liaison, community outreach, or investigative /intelligence mission, FBI employees may also establish tripwires with public entities, private entities, and other governmental agencies. Liaison and tripwire initiatives are mutually beneficial for the FBI and the public not only because they help build cooperative relationships and educate about suspicious activities or potential threats, but also because they encourage the public to contact the FBI should they become aware of such suspicious activities or threats . 11.2 (U) PURPOSE AND SCOPE (U//FOUO) The FBI is authorized to engage in liaison activities and tripwire. The procedures for liaison and setting tripwires, together with documentation and requirements for an Assessment or Predicated Investigation are set forth below. 11.3 (U) APPROVAL REQUIREMENTSFOR LIAISONAND TRIPWIRES (U//FOUO) Conducting liaison activities or tripwire initiatives do not require approval or the opening of an Assessment or Predicated Investigation unless they use an investigative method set forth in DIOG Sections 18.5 - 18.7. Liaison and Tripwire initiatives may be conducted as part of an already-opened Assessment or Predicated Investigation. 11.3.1 (U) SCENARIO 1 (U//FOUO) An FBI employee makes contact with a chemical supply company to introduce himself/herself and educate the owner about the Bureau's investigative focus on the illegal use of precursor chemicals to make improvised explosive devices. The employee advises the owner to contact the FBI if he/she observes any unusual or suspicious purchases of certain precursor chemicals. (U//FOUO) Response: Such a contact would not require approval or the opening of an Assessment or Predicated Investigation because no investigative methods are used to conduct this activity. 11.3.2 (U) SCENARIO 2 (U//FOUO) Using the same facts as above, except the FBI employee interviews the owner about recent purchases of precursor chemicals and requests the owner to voluntarily produce copies of all purchase records. //FOUO) Response: This differs from scenario #1 above because it uses investigative methods described in the AGG-Dom and DIOG Section 18 (interview and request information from 11-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY \; er'i1on D.ited Oct r ' 'i, 1011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §11 members of the public). To conduct such activity (whether called liaison or setting a tripwire) would require an Assessment or a Predicated Investigation to be open. 11.4 (U) DOCUMENTATION& RECORDSRETENTIONREQUIREMENTS (U//FOUO) The terms "liaison" and "tripwire" have been defined in various ways and may differ by FBIHQ division, program, or field office. Not every contact with a member of the public will be considered liaison activity or a tripwire initiative that needs to be documented . As stated above, employees are encouraged to engage and converse with the public as part of their routine FBI investigative and intelligence mission. (U//FOUO) Often, however, these terms are used and/or defined in a formal policy or EC to accomplish a particular investigative or intelligence objective. When an employee is directed by a supervisor, FBI policy, or a FBIHQ division to establish a liaison relationship or set a tripwire, that directive, as well as the actions taken by the employee, must be documented with an FD999. If an employee on his or her own initiative contacts a member of the public and subsequently determines the contact was a liaison or tripwire activity, the contact must be documented using the FD-999. Any questions regarding whether the employee's contact with the public should be documented as liaison or tripwire activities should be directed to the employee's supervisor. The intent of this section is to ensure that contacts with the public which are considered to be liaison activities or a tripwire initiatives be documented with the FD-999 into a single database system for tracking and reporting purposes. (U//FOUO) When the FD-999 is used to document liaison activities or tripwire initiatives, it must be uploaded to file number 319X-HQ-A1487718. Copies of the FD-999 must also be filed as follows: A) (U//FOUO) No Investigative Methods Used: If no investigative methods (DIOG Sections 18.5 - 18.7) are used in the liaison activity or tripwire, the FD-999 may be uploaded into an investigative file or control file. B) (U//FOUO) Investigative Methods Used: If investigative methods (DIOG Sections 18.518.7) are used in the liaison activity or tripwire, the FD-999 must also be uploaded in one of the following: I) (U//FOUO) an Assessment file; 2) (U//FOUO) a Predicated Investigation file; 3) (U//FOUO) a domestic police cooperation file (343 classification); 4) (U//FOUO) a foreign police cooperation file (163 classification); or 5) (U//FOUO) a technical assistance control file (if only technical assistance is provided). Verswn Dated· October 15, 2011 11-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY ------- UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 12 (U) ASSISTANCETO OTHERAGENCIES 12.1 (U) OVERVIEW (U//FOUO) Part II of the Attorney General's Guidelines for Domestic FBI Operations (AGGDom) authorizes the FBI to conduct investigations in order to detect or obtain information about, and prevent and protect against, federal crimes and threats to the national security and to collect foreign intelligence. (See DIOG Section 2.) Section 12 does not apply to assistance the FBI may provide to other agencies while conducting joint investigations. In such instances, other sections of the DIOG dealing with Assessments and Predicated Investigations would apply. (U//FOUO) Section 12 specifically addresses those situations in which the FBI has been requested or is seeking to provide assistance to other agencies and does not have an open Assessment or Predicated Investigation. Part III of the AGG-Dom, Assistance to Other Agencies, authorizes the FBI to provide investigative assistance to other federal, state, local or tribal, or foreign agencies when the investigation has the same objectives as Part II of the AGG-Dom or when the investigative assistance is otherwise legally authorized. Accordingly, FBI employees may provide assistance even if it is not for one of the purposes identified as grounds for an FBI investigation or Assessment if providing the assistance is otherwise authorized by law. For example, investigative assistance is legally authorized in certain contexts to state or local agencies in the investigation of crimes under state or local law, as provided in 28 U.S.C. § 540felonious killing of state and local law enforcement officer; 28 U.S.C. § 540A-violent crime against travelers; 28 U.S.C. § 540B-serial killings, and to foreign agencies in the investigation of foreign Jaw violations pursuant to international agreements. The FBI may use appropriate lawful methods in any authorized investigative assistance activity. 12.2 (U) PURPOSE AND SCOPE (U) The FBI may provide investigative and technical assistance to other agencies as set forth below. 12.2.1 (U) INVEST/GATIVEASSISTANCE U) The AGG-Dom permits FBI personnel to provide investigative assistance to: A) (U) Authorized intelligence activities of other United States Intelligence Community (USIC) agencies; B) (U) Any federal agency in the investigation of federal crimes, threats to the national security, foreign intelligence collection, or any other purpose that may be lawfully authorized; C) (U) Assist the President in determining whether to use the armed forces pursuant to 10 U.S.C. §§ 331-33, when authorized by Department ofJustice (DOJ), as described in Section 12.3.2.2.1.1, below; D) (U) Collect information necessary to facilitate public demonstrations and to protect the exercise of First Amendment rights and ensure public health and safety, when authorized by DOI and done in accordance with the restrictions described in Section 12.3.2.2.1.2. below ; 12-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 E) (U) State or local agencies in the investigation of crimes under state or local law when authorized by federal law (e.g., 28 U.S.C. §§ 540- felonious killing of state and local law enforcement officer; 540A- violent crime against travelers; 540B- serial killings); F) (U) State, local, or tribal agencies in the investigation of matters that may involve federal crimes or threats to national security, or for such other purposes as may be legally authorized; G) (U) Foreign agencies in the investigations of foreign law violations pursuant to international agreements, and as otherwise set forth below, consistent with the interests of the United States (including national security interests) and with due consideration of the effect on any US Person (USPER); and H) (U) The Attorney General has also authorized the FBI to provide law enforcement assistance to state or local law enforcement agencies when such assistance is requested by the governor of the state pursuant to 42 U.S.C. § 10501 (for example, federal law enforcement assistance following Hurricane Katrina). The Attorney General must approve any request for assistance under42 U.S.C. § 10501. (U) The procedures for providing investigative assistance, together with the standards, approval, notification , documentation , and dissemination requirements are set forth in Sections 12.3, 12.5, and 12.6 below. 12.2.2 (U) TECHNICALASSISTANCE (U) The FBI is authorized to provide technical assistance to all duly constituted law enforcement agencies , other organizational units of the DOJ, and other federal agencies and to foreign governments (to the extent not prohibited by law or regulation). The procedures for providing technical , together with the approval, notification, documentation, and dissemination requirements are set forth in Sections 12.4, 12.5 and 12.6 below. 12.3 (U) INVESTIGATIVEASSISTANCETO OTHER AGENCIES- STANDARDS, APPROVALSAND NOTICEREQUIREMENTS (U) The FBI may provide investigative assistance to other agencies by participating in joint operations and investigative activities with such agencies. (AGO-Dom , Part III.E.1) (U//FOUO) Dissemination of information to other agencies must be consistent with Director of National Intelligence (DNI) directives , the AGG-Dom , DIOG Section 14, FBI Foreign Dissemination Manual , the Privacy Act of 1974, and any applicable memoranda of understanding/agreement (MOU/MOA) , laws, treaties or other policies. (See Sections 12.5 and 12.6 below for documentation and dissemination of information requirements .) 12.3.1 (U) STANDARDS FORPROVIDINGINVEST/GATIVEASSISTANCE TO OTHER AGENCIES (U//FOUO) The determination whether to provide FBI assistance to other agencies is discretionary but may only occur if: A) (U//FOUO) The assistance is within the scope authorized by the AGG-Dom, federal laws, regulations, or other legal authorities; Version Dated October 15.2011 12-2 UN CLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 B) (U//FOUO) The investigation being assisted is not based solely on the exercise of First Amendment activities or on the race , ethnicity, national origin or religion of the subject or a combination of only these factors; and C) (U//FOUO) The assistance is an appropriate use of FBI personnel and financial resources. 12.3.2 (U) AUTHORITY, APPROVAL AND NOTICE REQUIREMENTS FOR PROVIDING INVEST/GA TIVE ASSISTANCE TO OTHER AGENCIES (U//FOUO) Investigative assistance that may be furnished to other agencies is described below by agency type. 12.3.2.1 (U) INVESTIGATIVE ASSISTANCE TO UNITED STATES INTELLIGENCE COMMUNITY (USIC) 12.3.2.1.1 AGENCIES (U) AUTHORITY A) (U//FOUO) The FBI may provide investigative assistance (including operational support) for authorized intelligence activities of other USIC agencies . (AGG-Dom, Part III.A) B) (U//FOUO) Investigative assistance must be in compliance with interagency MOU/MOA, if applicable. For example, specific approval and notification requirements exist for assisting the Central Intelligence Agency (CIA) and the Department of Defense (DOD) domestic activities. 12.3.2.1.2 (U) APPROVAL REQUIREMENTS A) (U//FOUO) General: If assistance to a component of the USIC will involve the use of investigative methods other than those authorized for Assessments (those in DIOG Sections 18.6 - 18.7), prior SSA approval must be obtained with the FD-999 . Supervisory approval for use of investigative methods authorized only for use during Predicated Investigations shall be at the same level required for the use of that investigative method during an FBI investigation as provided in DIOG Sections 18.6 - 18.7. Approval for use of specific technologies is set forth in Section 12.4 below . B) (U//FOUO) Sensitive Investigative Matters (SIM): Any investigative assistance to other USIC agencies involving a SIM requires Chief Division Counsel (CDC)/Office of the General Counsel (OGC) review, SAC/Section Chief (SC) approval, and notification, as specified in 12.3.2.1.3.B, below. 12.3.2.1.3 (U) NOTICE REQUIREMENTS A) (U//FOUO) General: Notice must be provided for the investigative activity or investigative method as specified in the DIOG or applicable MOU/MOAs . B) (U//FOUO) Sensitive Investigative Matters (SIM): In addition to the above-required approvals , any investigative assistance to USIC agencies involving a SIM requires notification to the appropriate FBI Headquarters (FBIHQ) operational Unit Chief (UC) and SC by Electronic Communication (EC) as soon as practicable , but no later than 15 calendar days after the initiation of the investigative assistance. The appropriate FBIHQ operational unit must provide notice to the DOJ Criminal Division or National Security Division SD) as soon as practicable, but not later than 30 calendar days after the initiati on of any investigati ve assistance involving a SIM. 12-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 C) (U//FOUO) Classified Appendix: See the classified provisions in DIOG Appendix G for additional notice requirements. 12.3.2.1.4 (U) DOCUMENTATION REQUIREMENTS (U//FOUO) Investigative assistance (including expert) to USIC agencies using an investigative method, other than those authorized in assessments, must be documented with the FD-999, filed and uploaded to an appropriate file as specified in Sections 12.5 and 12.6 below. Division PGs may require specific additional reporting requirements for their programs. 12.3.2.2 (U) INVESTIGATIVE ASSISTANCE TO OTHER UNITED STATES FEDERAL AGENCIES 12.3.2.2.1 (U) AUTHORITY A) (U//FOUO) The FBI may provide investigative assistance to any other federal agency in the investigation of federal crimes or threats to the national security or in the collection of positive foreign intelligence. (Pursuant to DIOG Section 9, collection of positive foreign intelligence requires prior approval from the Collection Management Section (CMS), FBIHQ.) The FBI may provide investigative assistance to any federal agency for any other purpose that may be legally authorized, including investigative assistance to the United States Secret Service (USSS) in support of its protective responsibilities. (AGG-Dom, Part III.B. l) See DIOG Section 12.4 below for guidance in providing technical assistance to federal agencies. B) (U//FOUO) Investigative assistance must be in compliance with interagency MOU/MOA, if applicable. 12.3.2.2.1.1 (U) ACTUAL OR THREATENED DOMESTIC CIVIL DISORDERS A) (U) At the direction of the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division , the FBI shall collect information relating to actual or threatened civil disorders to assist the President in determining (pursuant to the authority of the President under l OU.S.C. §§ 331-33) whether use of the armed forces or militia is required and how a decision to commit troops should be implemented. The information sought shall concern such matters as (AGG-Dom, Part III.B.2): 1) (U) The size of the actual or threatened disorder, both in number of people involved or affected and in geographic area; 2) (U) The potential for violence; 3) (U) The potential for expansion of the disorder in light of community conditions and underlying causes of the disorder ; 4) (U) The relationship of the actual or threatened disorder to the enforcement of federal law or court orders and the likelihood that state or local authorities will assist in enforcing those laws or orders; and 5) (U) The extent of state or local resources available to handle the disorder. B) (U) Civil disorder investigations will be authorized only for a period of 30 days, but the authorization may be renewed for subsequent 30 day periods. C) (U) The only investigative methods that may be used during a civil disorder investigation are: 1) (U) Public information (See DIOG Section 18.5.1); Ve son Ll l'i 20 12-4 UNCL SSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 2) (U) Records or information - FBI or DOJ (See DIOG Section 18.5.2); 3) (U) Records or information - Other Federal, state, local, or tribal, or foreign governmental agency (See DIOG Section 18.5.3); 4) (U) Online services and resources (See DIOG Section 18.5.4); 5) (U) Interview or request information from the public or private entities (See DIOG Section 18.5.6); (U//FOUO) Note: Such interviews may only be conducted if the FBI employee identifies himself or herself as an FBI employee and accurately discloses the purpose of the interview. 6) (U) Information voluntarily provided by governmental or private entities (See DIOG Section 18.5.7); and 7) (U) Any other methods may be used only if authorized by the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division. 12.3.2.2.1.2 (U) PUBLIC HEAL TH AND SAFETY AUTHORITIES IN RELATION TO DEMONSTRATIONS A) (U) At the direction of the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division, the FBI shall collect information relating to demonstration activities that are likely to require the federal government to take action to facilitate the activities and provide public health and safety measures with respect to those activities. The information sought in such an investigation shall be that needed to facilitate an adequate federal response to ensure public health and safety and to protect the exercise of First Amendment rights, such as: 1) (U) The time, place, and type of activities planned; 2) (U) The number of persons expected to participate; 3) (U) The expected means and routes of travel for participants and expected time of arrival; and 4) (U) Any plans for lodging or housing of participants in connection with the demonstration. B) (U) The only investigative methods that may be used in an investigation under this paragraph are: 1) (U) Public Information (See DIOG Section 18.5.1); 2) (U) Records or information - FBI and DOJ (See DIOG Section 18.5.2); 3) (U) Records or information - other Federal, state, local, tribal, or foreign government agencies (See DIOG Section 18.5.3); 4) (U) Use online services and resources (See DIOG Section 18.5.4); 5) (U) Interview or request information from the public or private entities (See DIOG Section 18.5.6); (U//FOUO) Note: Such interviews may only be conducted if the FBI employee identifies himself or herself as an FBI employee and accurately discloses the purpose of the interview; 12-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY er O r D tEJ: l'" ~O!l UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 6) (U) Accept information voluntarily provided by governmental or private entities (See DIOG Section 18.5.7); and 7) (U) Any other methods may be used only if authorized by the Attorney General , the Deputy Attorney General , or the Assistant Attorney General for the Criminal Division. 12.3.2.2.2 (U) APPROVAL REQUIREMENTS A) (U//FOUO) General: If assistance to another federal agency will involve the use of investigative methods other than those authorized for Assessments , prior Supervisory Special Agent (SSA) approval must be obtained with the FD-999 . Supervisory approval for use of investigative methods authorized only for use during Predicated Investigations shall be at the same level required for use of that investigative method during an FBI investigation as provided in DIOG Sections 18.6 andl 8.7. Approval for use of specific technologies is set forth in Section 12.4 below . B) (U//FOUO) Sensitive Investigative Matters (SIM): Any investigative assistance to other federal agencies involving a SIM requires prior CDC/OGC review and SAC/SC approval, and notification , as specified in 12.3.2.2.3.B below. 12.3.2.2.3 (U) NOTICE REQUIREMENTS A) (U//FOUO) General: Notice must be provided for the investigative activity or investigative method as specified in the DIOG and applicable MOU/MOAs. B) (U//FOUO) Sensitive Investigative Matters (SIM): In addition to the above-required approvals , any investigative assistance to another federal agency involving a SIM requires notification to the appropriate FBIHQ operational UC and SC by EC as soon as practicable, but no later than 15 calendar days after the initiation of the assistance. The appropriate FBIHQ operational unit must provide notice to the DOJ Criminal Division or NSD as soon as practicable , but not later than 30 calendar days after the initiation of any assistance involving a SIM. C) (U//FOUO) Classified Appendix: See the classified provisions in DIOG Appendix G for additional notice requirements. 12.3.2.2.4 (U)DOCUMENTA TION REQUIREMENTS (U//FOUO) Investigative assistance (including expert) to other Federal agencies using an investigative method , other than those authorized in assessments , must be documented with the FD-999 , filed and uploaded to an appropriate file as specified in Sections 12.5 and 12.6 below. Division PGs may require specific additional reporting requirements for their programs. 12.3.2.3 (U) INVESTIGATIVE ASSISTANCE TO STATE, LOCAL AND TRIBAL AGENCIES (U) The FBI may provide investigative assistance to state, local and tribal agencies : A) (U) in the investigation of crimes under state or local law when authorized by federal law (e.g., 28 U.S.C . §§ 540- felonious killing of state and local law enforcement officer ; 540Aviolent crime against travelers ; 540B- serial killings) ; B) (U) in the investigation of matters that may involve federal crimes or threats to national security , or for such other purposes as may be legally authorized; Version Dated: October 15, 2011 12-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 C) (U) when such assistance is requested by the governor of the state pursuant to 42 U.S.C. § 10501 (for example, federal law enforcement assistance following Hurricane Katrina). The Attorney General must approve any request for assistance under 42 U.S.C. § 10501; and D) (U) under limited circumstances, the FBI is authorized to provide "expert" personnel to assist law enforcement agencies in their investigations. This authority is a limited exception to the general rule that the FBI cannot provide investigative assistance to investigate state crimes if there is no federal nexus. (U) The authority to provide "expert assistance" to state investigations has been the subject of several opinions from the Office of Legal Counsel (OLC), DOJ. OLC has opined that the limited authority the FBI has in this area generally derives from its authority to "assist in conducting, at the request of a State [or] unit of local government. .. local and regional training programs for the training of State and local criminal justice personnel engaged in the investigation of crime and the apprehension of criminals," 42 U.S.C. §3771, and its authority to provide Laboratory assistance even if there is no federal crime, 28 C.F.R. §0.85(g). OLC has made clear that this is not a broad grant of authority but instead is limited to assistance in circumstances where lives are in danger or there is a risk of serious bodily harm to a third person or a law enforcement officer. Adherence to the limitations set forth in this policy is important, as an employee whose actions exceed these limitations could be (a) acting beyond his or her official authority and therefore not entitled to qualified immunity from civil lawsuits or (b) acting outside the scope of his or her employment and therefore not entitled to DOJ representation if sued civilly. (U) It should be stressed that the limitations on this authority relate to providing expert investigative assistance - not to other types of interaction that could be helpful to our domestic law enforcement colleagues, including standard liaison and training. Thus, for example, while it would not be permissible for the FBI to provide expert assistance to a state white collar investigation that has no federal nexus (because there is no life/safety concern), in the face of a request for such assistance, the AD IC/SAC of a field office could offer to have an experienced white collar investigator provide white collar investigative training to the police officers in lieu of providing investigative assistance. (U) As used here, "expert personnel" are FBI employees who possess special skill or knowledge not normally possessed by professional law enforcement officers, that is derived from the employee's education, training, or experience; the term does not include FBI employees who have specific knowledge about a particular investigation derived from participating in an investigation prior to the cessation of a federal nexus or otherwise. (U) Areas of expertise for which requests for investigative assistance are commonly made include: Language Services, Polygraphers , Crisis Negotiators , Evidence Response Team (ERT), Special Weapons and Tactics (SW AT), Hostage Rescue Team (HRT), and Crisis Management. If the pertinent program has a PG or Policy Directive, the policy, procedures and approval requirements contained within the PG or Policy Directive must be followed. 12.3.2.3.1 (U) APPROVAL REQUIREMENTS A) (U) General: If the request for investigative assistance is based on Section 12.3.2.3. A or B above, the approval requirements specified in DIOG Sections 6 or 7 must be followed. If the request for investigative assistance is based on Section 12.3.2.3.C above, the Attorney General must approve the request. B) (U) Expert Investigative Assistance: If the request for expert investigati ve assistance is based on Section 12.3.2.3.D above and it is not covered by an existing PG or Policy Directive, the 12-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY 15 - 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 ADIC/SAC in the field office (or the FBIHQ SC if the request is received at FBIHQ) may approve the request with notification as soon as practicable to the General Counsel if: 1) (U) The head (or designee) of the state, local , or tribal law enforcement agency has submitted a written request (including by email) to the FBI which: a) (U) Identifies the need for specific expertise from the FBI; b) (U) Articulates the risk of an imminent threat of death or serious injury to members of the public or law enforcement personnel or a significant risk to public safety ; and c) (U) Represents that the agency does not have available employees with the needed expertise or that the employees who do have the needed expertise are not sufficiently well trained to handle the immediate situation . (U) Note : If due to the exigency of the situation there is not time for the request to be submitted in writing, the request may be made orally, but must be followed by a written request as soon as practicable, but not more than five (5) business days. 2) (U) The CDC, who is encouraged to consult with attorneys in the Investigative Law Unit , OGC (ILU), has reviewed the request and concluded that providing the requested assistance is consistent with this policy and does not create a significant risk of civil liability to the FBI or the individual employee. If the CDC assesses that the assistance will create a substantial risk of civil liability , the CDC must consult with ILU prior to approving the request. Additionally , the CDC is encouraged to consult with the Science and Technology Law Office (STLO) in OGC whenever questions arise concerning expert assistance associated with the use of Law Enforcement Sensitive (LES) technology, including techniques and capabilities. 3) (U) The requesting agency is acting in the lawful execution of an authorized function of that organization; and 4) (U) The loan of FBI personnel is an appropriate use of personnel and financial resources and does not jeopardize any ongoing FBI investigation. 12.3.2.3.2 (U) NOTICE REQUIREMENTS A) (U//FOUO) General: Notice must be provided for the investigative activity or investigative method as specified in the DIOG , and applicable MOU/MOAs and/or treaties. B) (U//FOUO) Sensitive Investigative Matters (SIM): In addition to the above-required approvals , any investigative assistance provided to a state , local, or tribal law enforcement agency involving a SIM requires notification to the appropriate FBIHQ operational unit and section by EC as soon as practicable, but no later than 15 calendar days after the initiation of the assistance . The appropriate FBIHQ operational unit must provide notice to the DOJ Criminal Division or NSD as soon as practicable , but not later than 30 calendar days after the initiation of any assistance involving a sensitive investigative matter. (U//FOUO) Classified Appendix: See the classified provisions in DIOG Appendix G for additional notice requirements . 12.3.2.3.3 (U) DOCUMENTATION REQUIREMENTS (U//FOUO) Investigative assistance (including expert) using an investigative method, other than those authorized in assessments , must be documented with the FD-999, filed Version Dated October 15, 2011 12-8 UNC LASSIF IED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 and uploaded to an appropriate file as specified in Sections 12.5 and 12.6 below. Division PGs may require specific additional reporting requirements for their programs. 12.3.2.3.4 (U) EXAMPLES OF EXPERT INVESTIGATIVE ASSISTANCE (U//FOUO) Example 1: A small town has experienced a string of muggings, but none of the victims, all elderly women, have been able to identify her attacker. The muggings have all occurred during commuting hours near shops. The community is quite upset. The local newspaper has published a number of stories on the attacks and reported that many women are afraid to leave their homes . The local police department is convinced that people have information that would help identify the assailant, but because the attacks take place during commuting hours they do not have enough officers to cover all the places where muggings have occurred during the short time frame of the attacks. They ask agents in the local RA to assist with interviewing commuters. (U//FOUO) Response 1: The FBI cannot provide this assistance because this is a request to provide routine investigative assistance (additional manpower), not expert assistance. (U//FOUO) Example 2: A midsize city police department receives several 911 calls indicating at least one, and perhaps more, gunmen have entered a 25-story office building and shot several employees on the 15th floor. One gunman was seen exiting the building, was chased by local police to a nearby home, and the gunman now holds several hostages and is shooting at police. The city's SWAT team deployed to the house. The local Police Chieforally requests for the assistance of the FBI's SWAT team and crisis negotiators because the department's SWAT personnel cannot cover both the house and the building simultaneously and the department does not have crisis negotiators. (U//FOUO) Response 2: The SAC may provide this expert investigative assistance, notwithstanding the apparent lack of federal nexus, if local resources are insufficient to handle this emergency situation that poses an imminent risk of harm to the public. It would be appropriate for the FBI SWAT personnel to sweep the office building while local forces continue to deal with the barricaded subject. The crisis negotiators could be dispatched to the barricaded subject because the local department lacks such expertise. A crisis negotiator could also be deployed if the local police department had a crisis negotiator but assessed his/her skills were inadequate for the situation. Before granting the request, the SAC must have the CDC review it to determine whether there is a significant risk of civil liability. If the expert investigative assistance is provided, the field office must notify the General Counsel as soon as practicable. In addition, the oral request must be followed by a written request from the police department head as soon as practicable, but not more than five (5) business days. The investigative assistance rendered in these circumstances must be documented with the FD-999 and uploaded to the appropriate file as set forth in Section 12.5. (U//FOUO) Example 3: A local police department is investigating a local doctor for molesting his pediatric patients. One of the potential victims is a 10 year old girl who is mentally disabled. The local FBI field office has a child victim expert who has expertise in interviewing mentally disabled children; the police department has a child victim specialist who has no specialized training in handling mentally disabled victims. The police chief seeks the assistance of the FBI's child victim specialist. (U//FOUO) Response 3: The FBI may provide this requested assistance. Although there is no federal nexus, the FBI child victim specialist has relevant expertise that is not generally held within the law enforcement community and is not possessed by the local child victim specialist. The chief of police can articulate a risk of serious physical harm becau e until the 12-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY ------ . j 1 I UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 police can arrest the doctor, other children remain at risk of being molested. Before granting the request, the SAC must have the CDC review it to determine whether there is a significant risk of civil liability. If the expert investigative assistance is provided, the field office must notify the General Counsel as soon as practicable. The investigative assistance rendered in these circumstances must be documented with the FD-999 and uploaded to the appropriate file as set forth in Section 12.5. 12.3.2.4 (U) INVESTIGATIVEASSISTANCETO FOREIGNAGENCIES (U//FOUO) The foundation of the FBI's international program is the Legal Attache (Legat). Each Legat is the Director's personal representative in the foreign countries in which he/she resides or has regional responsibilities. The Legat's job is to respond to the FBI's domestic and foreign investigative needs. The Legat can accomplish this because he/she develops partnerships and fosters cooperation with his or her foreign counterparts on every level and is familiar with investigative rules, protocols, and practices that differ from country to country. This is the Legat's primary responsibility. As such, foreign agency requests for assistance will likely come to the FBI through the Legat or International Operations Division (IOD). If, however, a foreign agency request for assistance bypasses the Legat or IOD and is received directly by the field office or FBIHQ division, the employee must obtain the prior approval of the IOD on the FD-999 before such assistance can be given, as discussed in this section. 12.3.2.4.1 (U) AUTHORITIES A) (U//FOUO) At the request of foreign law enforcement, intelligence, or security agencies, the FBI may conduct investigations or provide assistance to investigations by such agencies, consistent with the interests of the United States (including national security interests) and with due consideration of the effect on any US person (USPER). (AGG-Dom, Part III.D.1) The FBI must follow applicable MOUs and MOAs (to include those with other US Government (USG) agencies), Mutual Legal Assistance Treaties (MLAT), Letters Rogatory, and other treaties when it provides assistance to foreign governments. 1) (U//FOUO) If a request for foreign assistance is received directly from a foreign law enforcement or intelligence service and is not processed through a Legat or IOD, special approvals are required prior to providing the assistance, as specified in 12.3.2.4.2.B below. 2) (U//FOUO) The appropriate Legat must coordinate all requests for assistance from agencies within his/her area of responsibility to avoid duplicative requests and to ensure an FBI field office does not respond to a foreign request previously denied by the Legat or IOD. B) (U//FOUO) If a USAO requests FBI assistance pursuant to an MLAT, Letters Rogatory or other treaty request, the field office must open a foreign police cooperation file to document the assistance with written notification by EC or the FD-999 to the appropriate Legat and IOD. C) (U//FOUO) The FBI may not provide assistance to a foreign law enforcement, intelligence, or security officer conducting an investigation within the United States unless such officer has provided prior written notification to the Attorney General of his/her status as an agent of a foreign government, as required by 18 U.S.C. § 951. (AGG-Dom, Part TTT.D.2)The notification required by 18 U.S.C. § 951 is not applicable to diplomats, consular officers or attaches. Version Dated: October 15, 2011 12-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 D) (U/ /FOUO) Upon the request of a foreign government agency, the FBI may conduct background inquiries concerning individuals whose consent is documented. (AGG-Dom, Part III.D.3) 12.3.2.4.2 (U) APPROVAL REQUIREMENTS A) (U//FOUO) When a request to assist a foreign agency is received from a Legat or IOD, and such assistance will require the use of investigative methods other than those that are authorized in Assessments, prior SSA approval must be obtained and documented as specified in 12.3.2.4.4 below. B) (U//FOUO) If a request for assistance is received directly from a foreign law enforcement or intelligence service and is not processed through a Legat or IOD, written notification documenting the foreign assistance request must be provided to the appropriate Legat and IOD by the FD-999, and IOD must grant approval prior to providing assistance, regardless of what investigative methods are used. (See also classified provisions in DIOG Appendix G) C) (U//FOUO) The Office oflntemational Affairs (OIA) in the DOJ's Criminal Division, has the responsibility and authority for the execution of all foreign assistance requests requiring judicial action or compulsory process. FBI IOD must coordinate all such requests with the DOI OIA. (See DAG Memorandum, dated 5/16 /2011, titled "Execution of Foreign Requests for Assistance in Criminal Cases.") D) (U/ /FOUO) Higher supervisory approvals and specific notifications may be required for assistance to foreign agencies involving joint operations, SIMs, and using particular investigative methods, as noted below and in Sections 10 and 18 of the DIOG, and in division PGs. E) (U//FOUO) Investigations and assistance conducted overseas, as well as related or official foreign travel of FBI personnel, require country clearances and notification to the Chief of Mission (COM) or designee. Such overseas investigations and assistance must adhere to the supplemental guidance in the IOD PG. 12.3.2.4.3 (U) NOTICE REQUIREMENTS A) (U// FOUO) When a foreign assistance request is submitted directly to a Legat or IOD by a foreign agency or through an FBIHQ-authorized joint task force operation involving foreign agencies that has previously been briefed to the Legat, IOD has notice of the request and the ' FBI employee does not need IOD approval prior to providing the assistance. The FBI employee must provide IOD and the Legat the results of the assistance. B) (U) The FBI must notify the DOJ NSD concerning investigation or assistance when: (i) FBIHQ's approval for the activity is required (e.g., FBIHQ approval is required to use a particular investigative method); and (ii) the activity relates to a threat to the United States national security. The FBIHQ division approving the use of the investigative method must notify DOJ NSD as soon as practicable, but no later than 30 calendar days after FBIHQ approval (see classified appendix for additional notice requirements). (AGG-Dom, Part III.D.1) C) (U//FOUO) Classified Appendix: See the classified provisions in DIOG Appendix G for additional notice requirements. D) (U//FOUO) Sensitive Investigative Matters (SIM): Any request for investigative assistance to a foreign agency involving a SIM requires OGC review and IOD SC approval, and notification as specified below. In addition to these approvals , any investiga tive assistance to a 12-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY ers on Dated: O~ber 15 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 foreign agency involving a SIM requires notification to the appropriate FBIHQ operational UC and SC by EC with an LHM suitable for dissemination to DOI as soon as practicable, but no later than 15 calendar days after the initiation of the assistance. Additionally, the appropriate IOD unit must provide notice to the DOJ Criminal Division or NSD as soon as practicable, but not later than 30 calendar days after the initiation of any assistance involving a SIM. 12.3.2.4.4 (U) DOCUMENTATION REQUIREMENTS (U//FOUO) All investigative assistance to foreign agencies must be documented with an FD-999 and uploaded to an appropriate file as specified in Sections 12.5 and 12.6 below. 12.3.2.4.5 (U) EXAMPLES (U//FOUO) Example 1: The local Australian Liaison Officer submits a request directly to his/her contact agent at the local FBI field office to run record checks (investigative assistance) on Platypus, Inc., an Australian-based company suspected of illegally exporting technology to China in violation of Australian law. The agent obtains SSA approval to run the records checks and completes an FD-999, which electronically notifies Legat Canberra and IOD of the request. Subsequently, the Legat approves the request, and the agent runs the record checks and gets negative results. The agent submits a summary EC documenting the Assessment request, SSA and Legat approvals, and the results are documented in a zero subassessment file with a "Read and Clear" lead to Legat Canberra and IOD. (U//FOUO) Example 2: The same scenario as above, except the record checks provides a local address for a subsidiary of Platypus, Inc. In coordination with the Australian Liaison Officer, and with the approval of the SSA and IOD, the agent interviews an employee of the subsidiary and obtains statements incriminating Platypus, Inc. There does not appear to be a threat to the United States national security. The Australian Liaison Officer requests the employee be polygraphed (expert assistance). The agent obtains SSA approval to conduct the polygraph examination (because it is a method not permitted during an Assessment and SSA approval is required in DIOG Section 18.6.12 for the use of this investigative method) and documents the request and approval in the FD-999. Upon completion of the assistance, the results are documented in the appropriate file with a "Read and Clear" lead to Legat Canberra and IOD. 12 .4 (U) TECHNICALASSISTANCETO OTHER AGENCIES- ST ANDARDS, APPROVALS AND NOTICE REQUIREMENTS (U//FOUO) FBI technical assistance may be provided to other agencies when: A) (U//FOUO) the technical assistance is within the scope authorized by the AGG-Dom, Federal laws, regulations, or other legal authorities; B) (U//FOUO) the technical assistance is being provided in connection with a matter that is not based solely on the exercise of First Amendment activities or on the race, ethnicity, national origin or religion of the subject or a combination of only these factors; and C) (U//FOUO) the technical assistance is an appropriate use of FBI personnel and financial resources. Version Dated. October 15, 2011 12-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 (U) AUTHORITY 12.4.1 (U//FOUO) Pursuant to 28 C.F.R. §0.85(g), FBI Laboratories, including but not limited to, the Laboratory Division, Operational Technology Division's Digital Evidence Laboratory, and Regional Computer Forensic Laboratories are authorized to provide technical or scientific assistance and expert testimony to any duly constituted law enforcement agency. Additionally, pursuant to Attorney General (AG) Order 2954-2008, the FBI is authorized to provide reasonable technical and expert assistance to Federal, state, local, and tribal law enforcement agencies to assist such agencies in the lawful execution of their authorized functions. (See also 28 U.S.C §§ 509, 510 and 530(C)). Such assistance may also be provided to certain foreign agencies (see Section 12.4.2.4 below). Under the Order, such technical and expert assistance includes, but is not limited to: A) (U) Lending or sharing equipment or property; B) (U) Sharing facilities or services; C) (U) Collaborating in the development, manufacture, production, maintenance, improvement, distribution , or protection of technical investigative capabilities; D) (U) Sharing or providing transmission, switching, processing, storage or other services; E) (U) Disclosing technical designs, knowledge, information or expertise, or providing training in the same; F) (U) Providing the assistance of expert personnel in accordance with written guidelines issued by the FBI General Counsel or approved by the General Counsel (See Section 12.3.2.3 above); and G) (U) Providing forensic analysis and examination of submitted evidence. 12.4.2 (U) APPROVAL REQUIREMENTS 12.4.2.1 (U) TECHNICAL ASSISTANCE TO USIC AGENCIES (U//FOUO) Before providing technical assistance to a USIC agency, the appropriate FBIHQ operational division as well as the OTD should be consulted to determine whether such assistance is governed by an existing PG, MOU or other agreement. 12.4.2.2 (U) TECHNICAL ASSISTANCE TO FEDERAL, STATE, LOCAL AND TRIBAL (DOMESTIC) AGENCIES REGARDING ELECTRONIC SURVEILLANCE, EQUIPMENT, AND FACILITIES (U) Field-based technical assistance requests under this section must be approved by the field office Assistant Director in Charge (ADIC) or SAC in compliance with the Operational Technology Division (OTD) Domestic Technical Assistance (DTA) PG. If the request for technical assistance involves equipment, facilities or property from more than one field office, each field office must approve the use of its resources. U) As specified below, FBIHQ senior executive officials and/or officials of the DOJ must approve a request for FBI technical assistance that involves: A) (U) Sensitive Circumstances, as defined in DIOG Section 18.7.2.6., where approval is required by an FBIHQ senior executive official or DOJ official designated therein; 12-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Oto rs or Dated ri 2lll UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 B) (U) Use of National Security Classified Investigative Technologies in criminal investigations, where approval is required by the Deputy Attorney General, DOJ. The request should be submitted for processing to the appropriate FBIHQ operational division unit responsible for the investigation and to the OTD SC with program responsibility; C) (U) Surreptitious (non-consensual) entry into a premises or vehicle or other technical operations determined by the Technical Advisor to present a similar risk. Such requests require the joint approval of the OTD SC with programmatic responsibility for tactical (covert entry) operations and the field office SAC or ADIC; or D) (U) Assistance to foreign law enforcement agencies (See Section 12.4.2.4 below). (U) The OTO Foreign Technical Assistance (FTA) PG provides additional details specifying the procedures and approval process that must be followed when the FBI is providing technical assistance regarding electronic surveillance, equipment, and facilities. (U) For technical assistance to foreign law enforcement agencies see Section 12.4.2.4 and the OTDFTAPG. 12.4.2.3 (U) TECHNICAL ASSISTANCE TO FEDERAL, STATE, LOCAL AND TRIBAL (DOMESTIC) AGENCIES INVOLVING EQUIPMENT OR TECHNOLOGIES OTHER THAN ELECTRONIC SURVEILLANCE EQUIPMENT (U) There are limited other situations in which, in the absence of a federal nexus, a domestic law enforcement agency may seek technical assistance through the short term loan of equipment from the FBI. If there is an applicable PG or Policy Directive, the policy and procedures contained within the PG or Policy Directive must be followed (see, e.g., Corporate Policy Directive: Deployment of MRAP Armored Vehicles in the Absence of Federal Jurisdiction). If no PG or Policy Directive governs the particular equipment sought to be borrowed and if the loan of the equipment does not necessarily also entail the loan of personnel to use or operate the equipment, then the AD IC/SAC of the field office must approve the loan of the equipment in accordance with the following policy and procedures. If the loan of the equipment necessarily entails the loan of FBI employees, the policies governing expert assistance set forth below must also be followed. (U) Any loan of equipment must be documented through a written agreement between the AD IC/SAC and the head of the borrowing law enforcement agency or his/her designee. At a minimum, the agreement must provide that the borrowing law enforcement agency will reimburse the FBI should the equipment be lost or damaged and that the borrowing law enforcement agency will promptly return the equipment when asked to do so by the FBI. If due to the exigency of the situation there is not time for the request to be submitted in writing, the request may be made orally but must be followed by a written agreement as soon as practicable, but not more than five (5) business days following the loan. (U) In considering whether to lend the equipment to the federal, state, local and tribal law enforcement agency, the ADIC/SAC must take into account the following: A) (U) The purpose for which the equipment is being requested and how the equipment will be used to advance that objective; B) (U) The likelihood that the equipment will be damaged by the requested use; Version Dated: October 15, 2011 12-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 C) (U) The likelihood that the field office will need the equipment during the proposed loan period; and D) (U) Whether the borrowing law enforcement agency has previously violated the terms of any loan of equipment or damaged any equipment previously lent by the FBI. ill}_The OTD FT A PG provides additional details specifying the procedures and approval process that must be followed when the FBI is providing equipment or technologies other than electronic surveillance equipment. (U) For technical assistance to foreign law enforcement agencies see Section 12.4.2.4 below and the OTD Foreign Technical Assistance (FTA) PG. 12.4.2.4 12.4.2.4.1 (U) TECHNICAL ASSISTANCE TO FOREIGN AGENCIES (U) AUTHORITIES A) (U//FOUO) The AGG-Dom, Part III.D.4 authorizes the FBI to provide other technical assistance to foreign governments to the extent not otherwise prohibited by law. B) (U//FOUO) AG Order 2954-2008 authorizes the FBI to provide technical assistance to foreign national security and law enforcement agencies cooperating with the FBI in the execution of the FBI's counter-terrorism and counter-intelligence duties and to foreign law enforcement agencies to assist such agencies in the lawful execution of their authorized functions. Requests under this section for technical assistance with respect to electronic surveillance and other OTD technologies are to be handled pursuant to the OTD FTA PG. 12.4.2.4.2 (U) APPROVAL REQUIREMENTS QUO) Approvals of requests for technical assistance to foreign agencies are to be han dled pursuant to the OTD FTA PG . 12.4.2.4.3 (U) NOTICE REQUIREMENTS A) (U//FOUO) General: Notice must be provided for the investigative activity or investigative method as specified in the DIOG, and applicable MOU/MOAs and/or treaties . B) (U//FOUO) Sensitive Investigative Matters (SIM): In addition to the above-required approvals, any investigative technical assistance to the agencies listed in this section involving a SIM requires approval by the SAC (HQ assistance requires SC approval) with notification to the appropriate FBIHQ operational unit and section and appropriate OTD section by EC as soon as practicable, but no later than 15 calendar days after the initiation of the assistance. The appropriate FBIHQ operational unit must provide notice to the DOJ Criminal Division or SD as soon as practicable, but not later than 30 calendar days after the initiation of any assistance involving a SIM. C) (U//FOUO) Classified Appendix: See the classified provisions in DIOG Appendix G for additional notice requirements. 2.4 .2.4.4 (U) DOCUMENTATION REQUIREMENTS (U//FOUO) All technical assistance rendered must be documented with the FD-999, filed and uploaded to an appropriate file as specified in Sections 12.5 and 12.6 below. 12-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY '"<; n le ted UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide § 12 12.5 (U) DOCUMENTATION REQUIREMENTS FOR INVESTIGATIVE OR TECHNICAL ASSISTANCE TO OTHER AGENCIES 12.5.1 (U) DOCUMENTATION REQUIREMENTS IN GENERAL (U//FOUO) When required by this section, the FD-999 must be used to document assistance to other agencies (domestic or foreign) or the dissemination of information . The FD-999 must be completed by the FBI division, field office, or Legat that provides the assistance or disseminates the information. (For example, if an FBIHQ division receives a request for assistance from another federal agency and forwards the request to the field office that can provide the assistance, that field office is required to complete the FD-999.) (U//FOUO) When an FD-999 is used to document the "dissemination" of information to another agency, it is understood that "assistance" was provided to said agency and a separate FD-999 does not have to be completed to document the assistance to that agency (domestic or foreign). 12.5.2 (U) DOCUMENTATION REQUIREMENTS FOR INVESTIGATIVE ASSISTANCE {INCLUDING EXPERT ASSISTANCE) TO OTHER AGENCIES (DOMESTIC OR FOREIGN) (U//FOUO) Mandatory use of the FD-999: The FD-999 must be used when providing investigative assistance, including expert investigative assistance, using an investigative method other than those authorized in Assessments to: A) (U) USIC Agencies; B) (U) United States Federal Agencies; C) (U) State , Local , or Tribal Agencies; or D) (U) Foreign Agencies. (U//FOUO) Exception: Regardless of investigative methods used, if a request for foreign investigative assistance is received directly from a foreign law enforcement or intelligence service and is not processed through a Legat or IOD, written notification documenting the foreign investigative assistance request must be provided to the appropriate Legat and IOD by the FD-999, and IOD must grant approval prior to providing the assistance . (U//FOUO) Example: Another federal agency requests the FBI to participate in an interview. The FBI does not have an open investigation in the matter. In such circumstances, it is not necessary to complete an FD-999 to document the assistance because the investigative method (interview) is authorized for use in Assessments and does not require supervisory approvals or documentation. However, if the FD-302 will be disseminated to the requesting federal agency then an FD-999 must be prepared. Version Dated: October 15, 2011 12-16 UNCLASSIFIE D - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 12.5.3 (U) DOCUMENTATION §12 REQUIREMENTS FOR TECHNICAL ASSISTANCE TO OTHER AGENCIES (DOMESTIC OR FOREIGN) (U//FOUO) Mandatory use of the FD-999: The FD-999 must be used when providing any technical assistance to: A) (U) USIC Agencies; B) (U) United States Federal Agencies; C) (U) State, Local, or Tribal Agencies; or D) (U) Foreign Agencies. 12.6 (U) DISSEMINATION OF INFORMATION TO OTHER AGENCIES- DOCUMENTATION REQUIREMENTS (U//FOUO) Dissemination of information to other agencies must be consistent with Director of National Intelligence directives, the AGG-Dom , DIOG Section 14, FBI Foreign Dissemination Manual, the Privacy Act of 1974, and any applicable MOU /MOA, law, treaty or other policy. (U//FOUO) Classified information may only be disseminated pursuant to applicable federal law, Presidential directive, Attorney General policy and FBI policy. (U) The Privacy Act mandates specific documentation of any dissemination of information to an agency outside the DOJ involving a U.S. Citizen or alien lawfully admitted for permanent residence, i.e., a U.S. person (USPER). (U//FOUO) Dissemination of information to foreign agencies must be in accordance with the FBI Foreign Dissemination Manual, dated May 23, 2008, or as revised. (U//FOUO) Mandatory use of the FD-999: The FD-999 must be used to document the dissemination of all unclassified or classified (up to Secret level) information to: A) (U) USIC Agencies; B) (U) United States Federal Agencies - when the disseminated information is related to their respective responsibilities ; C) (U) State, Local, or Tribal Agencies - when the disseminated information is related to their respective responsibilities; or D) (U) Foreign Agencies . (U//FOUO) Note: Dissemination of Top Secret or higher classified information must be documented in the appropriate classified file or the Sensitive Compartmented Information Operational Network (SCION). (U//FOUO) Optional use of the FD-999: The FD-999 is permitted , but is not required to be used, for the dissemination of information if: A) (U//FOUO) the information disseminated is being furnished to an agency within the DOJ with which the FBI is working a joint investigation; or 12-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY d 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §12 B) (U//FOUO) the information is disseminated with an IIR, SIR, or other FBI document that is maintained in an approved database of records. 12. 7 (U) RECORDSRETENTIONREQUIREMENTS 12. 7.1 (U) USE OF THE FD-999 (U//FOUO) All FD-999s must be created on the FBI's SharePoint site. This requirement allows the FBI to maintain a database to comply with the AGG-Dom, Part III.E.3 because it will permit, with respect to each such activity, the prompt retrieval of the: A) (U) status of the assistance activity (opened or closed); B) (U) the dates of opening and closing; and C) (U) the basis for the assistance activity. 12.7.2 (U) UPLOADING THE FD-999 (U//FOUO) The FD-999 must be uploaded to the appropriate file, which may be: A) (U) an Assessment file; B) (U) a zero sub-assessment file; C) (U) a Predicated Investigation file; D) (U) a domestic police cooperation file - 343 Classification (the new 343 file classification system replaces the former 62 classification) as described below; E) (U) a foreign police cooperation file - 163 Classification (the revised 163 file classification system) as described below; F) (U) a zero classification file; or G) (U) any other investigative or technical assistance control file using a unique investigative file number created by the field office, Legat, or FBIHQ division to document the dissemination of information or assistance to another agency. (U//FOUO) These records will assume the NARA approved retention periods approved for the file classification in which they are maintained. 12.7.3 (U) REQUEST FOR FD-999 EXEMPTION (U//FOUO) FBI entities/programs may submit to the Corporate Policy Office (CPO), Director's Office, a written request for an exemption to the mandatory FD-999 requirements contained in DIOG Section 12 provided the entity/program maintains a similar database to permit the prompt retrieval of the information required above. The CPO, in conjunction with personnel from the Office oflntegrity and Compliance (OIC) and the OGC, will evaluate the exemption request to determine database compliance with the AGG-Dom. The CPO will approve or deny the exemption request, and maintain a list of all approved exempted entities/programs. Version Dated October 15, 20 11 12-18 CLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 12.7.4 (U //FOUO) §12 343 FILE CLASS/FICATION - DOMESTICPOLICE COOPERATION FILES (U//F OUO) The former 62 file classification may no longer be utilized to document domestic police cooperation. The new 343 file classification system with alpha-designators must be utilized to document domestic police cooperation matters. 12.7.5 {U / /FOUO) 163 FILE CLASS/FICATION - FOREIGNPOLICE COOPERATION FILES (U//FOUO) The 163 file classification was revised with "new" alpha-designators. The 163 file classification system must be utilized to document foreign police cooperation matters. 12-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY \ers Oct n Dated r 1~ 2 l: UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §13 13 (U) EXTRATERRITORIAL PROVISIONS 13.1 (U) OVERVIEW (U//FOUO) The FBI may conduct investigations abroad, participate with foreign officials in investigations abroad, or otherwise conduct activities outside the United States. The guidelines for conducting investigative activities outside of the United States are currently contained in: A) (U) The Attorney General's Guidelines for Extraterritorial FBI Operations and Criminal Investigations; B) (U) The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (NSIG, Part 11.E); C) (U) The Attorney General Guidelines on the Development and Operation of FBI Criminal Informants and Cooperative Witnesses in Extraterritorial Jurisdictions; D) (U) The Attorney General Procedure for Reporting and Use of Information Concerning Violations of Law and Authorization for Participation in Otherwise Illegal Activity in FBI Foreign Intelligence, Counterintelligence or International Terrorism Intelligence Investigations (August 8, 1988); and E) (U) Memorandum of Understanding Concerning Overseas and Domestic Activities of the Central Intelligence Agency and the Federal Bureau of Investigation (2005). (U//FOUO) Collectively, these guidelines and procedures are referred to in the DIOG as the Extraterritorial Guidelines. 13.2 (U) PURPOSE AND SCOPE (U//FOUO) As a general rule, the Extraterritorial Guidelines apply when FBI personnel or confidential human sources (CHS) are actively engaged in investigative activity outside the borders of the United States. In addition, investigative activities that may be undertaken in the United States but that have an intrusive effect on the domestic affairs of a foreign country and may be considered by the governing authorities of that country to constitute an invasion of its sovereignty are governed by the Extraterritorial Guidelines . The following is a list of such activities: A) (U//FOUO) Opening a bank account in a foreign financial institution from the United States for the purpose of laundering money; B) (U//FOUO) Causing or facilitating the transportation of stolen or counterfeit property into or through another country; C) (U//FOUO) Causing or facilitating the transportation of narcotics into or through another country; D) (U//FOUO) Conducting a non-consensual search of a known foreign-based computer ; E) (U//FOUO) Breaching the security of a known foreign-based computer security system ; F) (U//FOUO) Opening an undercover business in another country from the United States ; 13-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver on D t d October 1<; 2 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §13 G) (U//FOUO) Applying for a permit or license or otherwise making use of another country's government facilities, institutions or processes using a covert identity; H) (U//FOUO) Facilitating a person's unlawful entry into another county by creating false documentation; I) (U//FOUO) Consensual monitoring of communications with a senior foreign government official involving the official's duties or misuse of his/her office; and J) (U//FOUO) Any other investigative activity that, although it is conducted from the United States, is likely to create the same level of intrusion as the activities listed above or, for other reasons, has the reasonable potential to adversely impact United States foreign relations. (U//FOUO) FBI personnel planning to engage in any of the investigative activities described in the subsection above must obtain the concurrence of the appropriate Legal Attache (Legat) and must comply with the remaining procedural requirement of the Extraterritorial Guidelines, which may be found in the classified provisions in DIOG Appendix G. 13.3 (U) JOINT VENTURE DOCTRINE (U//FOUO) The "joint venture" doctrine provides that in certain circumstances, Fourth or Fifth Amendment rights may attach and evidence seized overseas, including statements of a defendant, may be subject to suppression if the foreign law enforcement officers did not comply with U.S. law. A determination that a "joint venture" exists requires a finding of "active" or "substantial" involvement by U.S. agents in the foreign Jaw enforcement activity. Because the determination will be fact specific and very few cases illuminate what constitutes "active" or "substantial" participation, FBI employees should contact their CDC or OGC for guidance. See also Chapter 35, DOJ Federal Narcotics Manual (March 2011) available on the DOJ intranet. 13.4 (U) LEGAL ATTACHE PROGRAM (U//FOUO) The foundation of the FBI's international program is the Legat. Each Legat is the Director's personal representative in the foreign countries in which he/she resides or has regional responsibilities. The Legat's job is to respond to the FBI's domestic and extraterritorial investigative needs. Legats can accomplish this mission because they have developed partnerships and fostered cooperation with their foreign counterparts on every level and are familiar with local investigative rules, protocols, and practices which differ from country to country. For additional information consult the FBIHQ IOD website. Version DatE.d: October 15, 2011 13-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 14 (U) RETENTIONAND SHARINGOF INFORMATION 14.1 (U) PURPOSE AND SCOPE (U//FOUO) Every FBI component is responsible for the creation and maintenance of authentic, reliable, and trustworthy records. (Note: If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM, etc.) should reflect that another party, and not the FBI, is the originator of the characterization). Without complete and accessible records, the FBI cannot conduct investigations, gather and analyze intelligence, assist with the prosecution of criminals, or perform any of its critical missions effectively. (U//FOUO) The FBI is committed to ensuring that its records management program accomplishes the following goals: A) (U//FOUO) Facilitates the documentation of official decisions, policies, activities, and transactions; B) (U//FOUO) Facilitates the timely retrieval of needed information; C) (U//FOUO) Ensures continuity of FBI business; D) (U//FOUO) Controls the creation and growth of FBI records; E) (U//FOUO) Reduces operating costs by managing records according to FBI business needs and by disposing of unneeded records in a timely manner; F) (U//FOUO) Improves efficiency and productivity through effective records storage and retrieval methods; G) (U//FOUO) Ensures compliance with applicable laws and regulations; H) (U//FOUO) Safeguards the FBI's mission-critical information; I) (U//FOUO) Preserves the FBI's corporate memory and history; and J) (U//FOUO) Implements records management technologies to support all of the goals listed above. (U) Note: The hardcopy file is the "official file" at the present time and a hardcopy of all electronic or on-line forms or documents must be printed and serialized into the field office or FBIHQ hardcopy file. 14.2 (U) THE FBI's RECORDS RETENTION PLAN, AND DOCUMENTATION (U//FOUO) The FBI must retain records relating to investigative activities according to the FBI's records retention plan that has been approved by the National Archives and Records Administration (NARA). (AGO-Dom, Part VI.A. I) (U//FOUO) The FBI's disposition authorities provide specific instructions about the length of time that records must be maintained. In some instances, records may be destroyed after a 14-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §13 G) (U//FOUO) Applying for a permit or license or otherwise making use of another country's government facilities, institutions or processes using a covert identity; H) (U//FOUO) Facilitating a person's unlawful entry into another county by creating false documentation; I) (U//FOUO) Consensual monitoring of communications with a senior foreign government official involving the official's duties or misuse of his/her office; and J) (U//FOUO) Any other investigative activity that, although it is conducted from the United States, is likely to create the same level of intrusion as the activities listed above or, for other reasons, has the reasonable potential to adversely impact United States foreign relations. (U//FOUO) FBI personnel planning to engage in any of the investigative activities described in the subsection above must obtain the concurrence of the appropriate Legal Attache (Legat) and must comply with the remaining procedural requirement of the Extraterritorial Guidelines, which may be found in the classified provisions in DIOG Appendix G. 13.3 (U) JOINTVENTUREDOCTRINE (U//FOUO) The "joint venture" doctrine provides that in certain circumstances , Fourth or Fifth Amendment rights may attach and evidence seized overseas, including statements of a defendant , may be subject to suppression if the foreign law enforcement officers did not comply with U.S. law . A determination that a "joint venture" exists requires a finding of "active" or "substantial" involvement by U.S. agents in the foreign law enforcement activity. Because the determination will be fact specific and very few cases illuminate what constitutes "active" or "substantial" participation, FBI employees should contact their CDC or OGC for guidance. See also Chapt er 35, DOJ Federal Narcotic s Manual (March 2011) available on the DOJ intranet. 13.4 (U) LEGALATTACHEPROGRAM (U//FOUO) The foundation of the FBI's international program is the Legat. Each Legat is the Director's personal representative in the foreign countries in which he/she resides or has regional responsibilities. The Legat's job is to respond to the FBI's domestic and extraterritorial investigative needs . Legats can accomplish this mission because they have developed partnerships and fostered cooperation with their foreign counterparts on every level and are familiar with local investigative rules , protocols , and practices which differ from country to country . For additional information consult the FBIHQ IOD website. Version Dated. October 15, 2011 13-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 14 (U) RETENTIONAND SHARINGOF INFORMATION 14.1 (U) PURPOSE AND SCOPE (U//FOUO) Every FBI component is responsible for the creation and maintenance of authentic, reliable, and trustworthy records. (Note: If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM, etc.) should reflect that another party, and not the FBI, is the originator of the characterization). Without complete and accessible records, the FBI cannot conduct investigations, gather and analyze intelligence, assist with the prosecution of criminals, or perform any of its critical missions effectively. (U//FOUO) The FBI is committed to ensuring that its records management program accomplishes the following goals: A) (U//FOUO) Facilitates the documentation of official decisions, policies, activities, and transactions; B) (U//FOUO) Facilitates the timely retrieval of needed information; C) (U//FOUO) Ensures continuity of FBI business; D) (U//FOUO) Controls the creation and growth of FBI records; E) (U//FOUO) Reduces operating costs by managing records according to FBI business needs and by disposing of unneeded records in a timely manner; F) (U//FOUO) Improves efficiency and productivity through effective records storage and retrieval methods; G) (U//FOUO) Ensures compliance with applicable laws and regulations; H) (U//FOUO) Safeguards the FBI's mission-critical information; I) (U//FOUO) Preserves the FBI's corporate memory and history; and J) (U//FOUO) Implements records management technologies to support all of the goals listed above. (U) Note: The hardcopy file is the "official file" at the present time and a hardcopy of all electronic or on-line forms or documents must be printed and serialized into the field office or FBIHQ hardcopy file. 14.2 (U) THE FBI's RECORDSRETENTIONPLAN, AND DOCUMENTATION (U//FOUO) The FBI must retain records relating to investigative activities according to the FBI's records retention plan that has been approved by the National Archives and Records Administration (NARA). (AGG-Dom, Part VI.A.I) (U//FOUO) The FBI's disposition authorities provide specific instructions about the length of time that records must be maintained. In some instances, records may be destroyed after a 14-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 prescribed period of time has elapsed. Other records are never destroyed and are transferred to NARA a certain number of years after an investigation is closed. 14.2.1 (U) DATABASE OR RECORDSSYSTEM (U//FOUO) The FBI must maintain a database or records system that permits, with respect to each Predicated Investigation, the prompt retrieval of the status of the investigation (open or closed), the dates of opening and closing, and the basis for the investigation. (AGG-Dom, Part VI.A.2) (U//FOUO) The FBI's official File Classification System covers records related to all investigative and intelligence collection activities, including Assessments. Records must be maintained in the FBI's Central Records System, or other designated systems of records, which provides the required maintenance and retrieval functionality. (U) RECORDSMANAGEMENTDIVISIONDISPOSITIONPLAN AND RETENTION 14.2.2 SCHEDULES (U//FOUO) (U//FOUO) All investigative records, whether from Assessments or Predicated Investigations, must be retained in accordance with the Records Management Division Disposition Plan and Retention Schedules. No records, including those generated during Assessments, may be destroyed or expunged earlier than the destruction schedule without written approval from NARA, except in "expungement" circumstances as further described in RMD policy. Records, including those generated during Assessments, may not be retained longer than the destruction schedule unless otherwise directed by RMD to include, "litigation hold" circumstances as described in RMD policy. See the RMD webpage and http ://home .fbinet.fbi/DO /RMD /RP AS/RDU /Pages/RecordFreezes{Holds)LitigationFreezeList.a spx. In the event an office believes they need to retain records beyond their destruction schedule, they should contact RMD for further guidance. 14.3 (U) INFORMATIONSHARING (U//FOUO) The FBI 2008 National Information Sharing Strategy (NISS) provides the common vision , goals, and framework needed to guide information sharing initiatives with our federal, state, local, and tribal agency partners, foreign government counterparts, and private sector stakeholders. The FBI NISS addresses the cultural and technological changes required to move the FBI to "a responsibility to provide" culture. 14.3.1 (U) PERMISSIVESHARING (U//FOUO) Consistent with the Privacy Act, FBI policy, and any other applicable laws and memoranda of understanding or agreement with other agencies concerning the dissemination of information, the FBI may disseminate information obtained or produced through activities under the AGG-Dom: A) (U//FOUO) Within the FBI and to all other components of the DOJ if the recipients need the information in the performance of their official duties. Version Dated: October 15, 2011 14-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 B) (U//FOUO) To other federal agencies if disclosure is compatible with the purpose for which the information was collected and it is related to their responsibilities. In relation to other USIC agencies, the determination whether the information is related to the recipient responsibilities may be left to the recipient. C) (U//FOUO) To state, local, or Indian tribal agencies directly engaged in the criminal justice process when access is directly related to a law enforcement function of the recipient agency. D) (U//FOUO) To Congress or to congressional committees in coordination with the FBI Office of Congressional Affairs (OCA) and the DOJ Office of Legislative Affairs. E) (U//FOUO) To foreign agencies if the FBI determines that the information is related to their responsibilities; the dissemination is consistent with the interests of the United States (including national security interests); consideration has been given to the effect on any identifiable USPER; and disclosure is compatible with the purpose for which the information was collected. F) (U//FOUO) If the information is publicly available, does not identify USPERs, or is disseminated with the consent of the person whom it concerns. G) (U//FOUO) If the dissemination is necessary to protect the safety or security of persons or property, to protect against or prevent a crime or threat to the national security, or to obtain information for the conduct of an authorized FBI investigation. H) (U//FOUO) If dissemination of the information is otherwise permitted by the Privacy Act (5 U.S.C.§ 552a) (AGG-Dom, Part VI.B.1) (U//FOUO) All FBI information sharing activities under this section shall be done in accordance with Corporate Policy Directive 120, "FBI Sharing Activities with Other Government Agencies," and Corporate Policy Directive 95D "Protecting Privacy in the Information Sharing Environment," and any amendments thereto and applicable succeeding policy directives. 14.3.2 (U) REQUIREDSHARING (U//FOUO) The FBI must share and disseminate information as required by law and applicable policy. Working through the supervisory chain and other appropriate entities, FBI employees must ensure compliance with statutes, including the Privacy Act, treaties, Executive Orders, Presidential directives, National Security Council (NSC) directives, Homeland Security Council (HSC) directives, Director of National Intelligence directives, Attorney General-approved policies, and MOUs or MOAs. 14.4 14.4.1 (U) INFORMATIONRELATEDTO CRIMINALMATTERS (U) COORDINATINGWITH PROSECUTORS (U//FOUO) In an investigation relating to possible criminal activity in violation of federal law, the FBI employee conducting the investigation must maintain periodic written or oral contact with the appropriate federal prosecutor, as circumstances warrant and as requested by the prosecutor. When, during such an investigation, a matter appears arguably to warrant prosecution, the FBI employee must present the relevant facts to the appropriate federal prosecutor. Information on investigations that have been closed must be available on request to a United States Attorney (USA) or his or her designee or an appropriate DOJ official. (AGG-Dom, Part VI.C) 14-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 14.4.2 (U) CRIMINALMATTERS OUTSIDEFBI JURISDICTION (U//FOUO) When credible information is received by an FBI employee concerning serious criminal activity not within the FBI's investigative jurisdiction, the FBI employee must promptly transmit the information or refer the complainant to a law enforcement agency having jurisdiction, except when disclosure would jeopardize an ongoing investigation, endanger the safety of an individual , disclose the identity of a CHS, interfere with the cooperation of a CHS, or reveal legally privileged information . If full disclosure is not made for any of the reasons indicated , then, whenever feasible , the FBI employee must make at least limited disclosure to a law enforcement agency or agencies having jurisdiction, and full disclosure must be made as soon as the need for restricting disclosure is no longer present. Where full disclosure is not made to the appropriate law enforcement agencies within 180 days, the FBI employee /field office must promptly notify FBIHQ in writing of the facts and circumstances concerning the criminal activity. The FBI must make periodic reports to the Deputy Attorney General of such nondisclosures and incomplete disclosures , in a form suitable to protect the identity of a CHS. (AGG-Dom, Part VI.C) 14.4.3 {U) REPORTING CRIMINALACTIVITY OFAN FBI EMPLOYEEOR CHS (U//FOUO) When it appears that an FBI employee has engaged in criminal activity in the course of an investigation, the FBI must notify the USAO or an appropriate DOJ division. When it appears that a CHS has engaged in criminal activity in the course of an investigation, the FBI must proceed as provided in the AGG-CHS. When information concerning possible criminal activity by any other person appears in the course of an investigation , the FBI may open an investigation of the criminal activity if warranted, and must proceed as provided in Section14.4 .1 and 14.4.2 above. (AGG-Dom , Part VI.C.3) (U//FOUO) The reporting requirements under this paragraph relating to criminal activity by an FBI employee or a CHS do not apply to otherwise illegal activity that is authorized in conformity with the AGG-Dom or other Attorney General guidelines or to minor traffic offenses. (AGGDom, Part VI.C.3) 14.5 (U) INFORMATIONRELATEDTO NATIONALSECURITYAND FOREIGN INTELLIGENCE MATTERS (U//FOUO) All information sharing with a foreign government related to classified national security and foreign intelligence must be done in accordance with the FBI Foreign Dissemination Manual and effective policies governing MOUs. (U//FOUO) The general principle reflected in current law and policy is that there is a responsibility to provide information as consistently and fully as possible to agencies with relevant responsibilities to.protect the United States and its people from terrorism and other threats to the national security , except as limited by specific constraints on such sharing. The FBI's responsibility in this area includes carrying out the requirements of the MOU Between the Intelligence Community, Federal Law Enforcement Agencies, and the Department of Homeland Security Concerning Information Sharing (March 4, 2003), or any successor memorandum of understanding or agreement. Specific requirements also exist for internal coordination and Vers10n Dated: October 15. 2011 14-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 consultation with other DOJ components, and for sharing national security and foreign intelligence information with White House agencies, as provided below. (AGG-Dom, Part VI.D) 14.5.1 (U) DEPARTMENTOF]UST/CE (U//FOUO) The DOJ National Security Division (NSD) must have access to all information obtained by the FBI through activities relating to threats to the national security or foreign intelligence. The Director of the FBI and the Assistant Attorney General for NSD must consult concerning these activities whenever requested by either of them, and the FBI must provide such reports and information concerning these activities as the Assistant Attorney General for NSD may request. In addition to any reports or information the Assistant Attorney General for NSD may specially request under this subparagraph, the FBI must provide annual reports to the NSD concerning its foreign intelligence collection program, including information concerning the scope and nature of foreign intelligence collection activities in each FBI field office. (AGGDom, Part VI.D.1) (U//FOUO) The FBI must keep the NSD apprised of all information obtained through activities under the AGG-Dom that is necessary to the ability of the United States to investigate or protect against threats to the national security; this should be accomplished with regular consultations between the FBI and the NSD to exchange advice and information relevant to addressing such threats through criminal prosecution or other means. (AGG-Dom, Part VI.D.1) (U//FOUO) Except for counterintelligence investigations, a relevant USAO must have access to and must receive information from the FBI relating to threats to the national security , and may engage in consultations with the FBI relating to such threats, to the same extent as the NSD. The relevant USAO must receive such access and information from the FBI field offices . (AGGDom, Part VI.D .1) (U//FOUO) In a counterintelligence investigation - i.e., an investigation of espionage or other intelligence activities , sabotage , or assassination , conducted by, for, or on behalf of foreign powers , organizations, or persons [AGG-Dom, Part VII.S.2] - the FBI may only provide information to and consult with a relevant USAO if authorized to do so by the NSD. Until the policies required by AGG-Dom , Part VI.D.1 .d are promulgated, the FBI may consult freely with the USAO concerning investigations within the scope of this subparagraph during an emergency, so long as the NSD is notified of such consultation as soon as practicable after the consultation. (AGG-Dom , Part VI.D.1). (U//FOUO) Information shared with a USAO pursuant to DIOG Section 14.5 (National Security) must be disclosed only to the USA or any AUSA designated by the USA as points of contact to receive such information. The USA and designated AUSA must have an appropriate security clearance and must receive training in the handling of classified information and information derived from FISA , including training concerning the secure handling and storage of such information and training concerning requirements and limitations relating to the use, retention , and dissemination of such information . (AGG-Dom , Part VI.D.1) (U//FOUO) The disclosure and sharing of information by the FBI under this paragraph is subject to any limitations required in orders issued by the FISC , controls imposed by the originators of sensitive material , and restrictions established by the Attorney General or the Deputy Attorney 14-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 General in particular investigations. The disclosure and sharing of information by the FBI under this paragraph that may disclose the identity of a CHS is governed by the relevant provisions of the AGG-CHS. (AGG-Dom, Part VI.D.1) (U) 14.5.2 THE WHITE HOUSE (U//FOUO) In order to carry out their responsibilities, the President, the Vice President, the Assistant to the President for National Security Affairs, the Assistant to the President for Homeland Security Affairs, the NSC and its staff, the HSC and its staff, and other White House officials and offices require information from all federal agencies, including foreign intelligence, and information relating to international terrorism and other threats to the national security. Accordingly, the FBI may disseminate to the White House foreign intelligence and national security information obtained through activities under the AGG-Dom, subject to the following standards and procedures. 14.5.2.1 (U) REQUESTSSENTTHROUGHNSC OR HSC (U//FOUO) The White House must request such information through the NSC staff or HSC staff including, but not limited to, the NSC Legal and Intelligence Directorates and Office of Combating Terrorism, or through the President's Intelligence Advisory Board or the Counsel to the President. (AGG-Dom, Part VI.D.2.a) (U//FOUO) If the White House sends a request for such information to the FBI without first sending the request through the entities described above, the request must be returned to the White House for resubmission. 14.5.2.2 (U) APPROVALBY THEATTORNEYGENERAL (U//FOUO) Compromising information concerning domestic officials or domestic political organizations, or information concerning activities of USPERs intended to affect the political process in the United States, may be disseminated to the White House only with the approval of the Attorney General, based on a determination that such dissemination is needed for foreign intelligence purposes, for the purpose of protecting against international terrorism or other threats to the national security, or for the conduct of foreign affairs. Such approval is not required, however, for dissemination to the White House of information concerning efforts of foreign intelligence services to penetrate the White House or concerning contacts by White House personnel with foreign intelligence service personnel. (AGG-Dom, Part VI.D.2.b) 14.5.2.3 (U) INFORMATIONSUITABLEFOR DISSEMINATION (U//FOUO) Examples of the type of information that is suitable for dissemination to the White House on a routine basis includes, but is not limited to (AGG-Dom, Part VI.D.2.c): A) (U//FOUO) Information concerning international terrorism; B) (U//FOUO) Information concerning activities of foreign intelligence services in the United States; C) (U//FOUO) Information indicative of imminent hostilities involving any foreign power; D) (U//FOUO) Information concerning potential cyber threats to the United States or its allies; Version Dated: October 15, 2011 14-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 E) (U//FOUO) Information indicative of policy positions adopted by foreign officials , governments , or powers , or their reactions to United States foreign policy initiatives; F) (U//FOUO) Information relating to possible changes in leadership positions of foreign governments , parties, factions, or powers; G) (U//FOUO) Information concerning foreign economic or foreign political matters that might have national security ramifications; and H) (U//FOUO) Information set forth in regularly published national intelligence requirements. 14.5.2.4 (U) NOTIFICATIONOF COMMUNICATIONS (U//FOUO) Communications by the FBI to the White House that relate to a national security matter and concern a litigation issue for a specific pending investigation must be made known to the Office of the Attorney General, the Office of the Deputy Attorney General , or the Office of the Associate Attorney General. White House policy may limit or prescribe the White House personnel who may request information concerning such issues from the FBI. (AGG-Dom Part VI.D.2 .d) 14.5.2.5 (U) DISSEMINATIONOF INFORMATIONRELATINGTO BACKGROUNDINVESTIGATIONS (U//FOUO) The limitations on dissemination of information by the FBI to the White House under the AGG-Dom do not apply to dissemination to the White House of information acquired in the course of an FBI investigation requested by the White House into the background of a potential employee or appointee , or responses to requests from the White House under E.O. 10450 relating to security requirements for government employment. (AGG-Dom , Part VI.D.2.e) 14.5.3 (U) CONGRESS (U//FOUO) FBI employees must work through supervisors and the FBI OCA to keep the congressional intelligence committees fully and currently informed of the FBI's intelligence activities as required by the National Security Act of 1947, as amended. Advice on what activities fall within the supra of required congressional notification can be obtained from OCA [A Corporate Policy Directi ve is forthcoming]. 14.6 (U) SPECIALSTATUTORYREQUIREMENTS (U) Information acquired under the FISA may be subject to minimization proc edures and other requirements specified in that Act. (AGG-Dom , Part VT.D.3.a) (U) Information obtained through the use of National Security Letters (NSLs) under 15 U.S.C. § 1681v (full credit reports) may be disseminated in conformity with the general standards of AGG-Dom , Part VI, and DIOG Section 18.6.6.6.1.8. Information obtained through the use of NSLs under other statutes may be disseminated in conformity with the general standards of the AGG-Dom , Part VI, subject to any specific limitations in the governing statutory provisions (see DIOG Section 18): 12 U.S.C . § 3414(a)(5)(B); 15 U.S .C. § 1681u(f); 18 U.S.C. § 2709(d) ; 50 U.S.C. § 436(e) . (AGG-Dom, Part VI.D.3.b) 14-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version D,ted: October 1S 2C11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 (U) Federal Rule of Criminal Procedure 6(e) generally prohibits disclosing "matters occurring before the grand jury." This includes documents, records, testimony of witnesses, or any other evidence deemed relevant by a sitting grand jury. The Attorney General has issued revised Guidelines for the Disclosure and Use of Grand Jury Information under Rule 6(e)(3)(D). On May 15, 2008, the Deputy Attorney General issued a memorandum which provides amplifying guidance as to lawful use and disclosure of 6(e) information. See also AGG-Dom, Part V.A.8 and DIOG Section 18.6.5.3.7.4.5. 14.7 (U) THREAT 14. 7.1 To LIFE- DISSEMINATION OF INFORMATION (U) OVERVIEW (U//FOUO) The FBI has a responsibility to notify persons of threats to their life or threats that may result in serious bodily injury and to notify other law enforcement agencies of such threats (Extracted from DOJ Office ofln vestigative Policies, Resolution 20, dated 12/16/96). Depending on the exigency of the situation, an employee, through their supervisor, should notify the appropriate operational division at FBIHQ of the existence of the threat and the plan for notification. That plan may be followed unless advised to the contrary by FBIHQ. 14.7.2 (U / /FOUO) INFORMATION RECEIVED THROUGH FISA SURVEILLANCE (U//FOUO) If information is received through a FISA-authorized investigative technique indicating a threat to life or serious bodily harm within the scope of Section 14.7, the field office case agent responsible for that FTSA must immediately coordinate the matter with the FBIHQ SSA responsible for that investigation and an NSLB attorney from the applicable counterintelligence or counterterrorism law unit. These individuals must consult the applicable FISA minimization procedures , consider the operational posture of the investigation, and collectively determine the appropriate manner in which to proceed . FBI executive management may be consulted, as appropriate (e.g., if DIDO or declassification authority is needed). The field office case agent must document the dissemination. If the decision is made not to disseminate the threat information, that decision must be approved by an ASAC or higher and the reasons must be documented in the applicable investigative file. 14. 7.3 (U) DISSEMINATION OF INFORMATION CONCERNING THREATS AGAINST INTENDED VICTIMS (PERSONS) 14.7.3.1 14.7.3.1.1 (U) WARNING TO THE INTENDED VICTIM (PERSON) (U) EXPEDITIOUS WARNINGS TO IDENTIFIABLE INTENDED VICTIMS (U//FOUO) Except as provided below in Sections 14.7.3.1.1.1 (Exceptions) and 14.7.3.1.2 (Custody or Protectee), when an employee has information that a person who is identified or can be identified through reasonable means (hereafter a "intended victim") is subject to a credible threat to his/her life or of serious bodily injury, the FBI employee must attempt expeditiously to warn the intended victim of the nature and extent of the threat. Version Dated October 15, 20 l l 14-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 14.7.3.1.1.1 §14 (U) EXCEPTIONS TO WARNING (U//FOUO) An employee is not required to warn an intended victim if: A) (U//FOUO) providing the warning to the intended victim is likely to cause equal or greater physical harm to one or more persons; 8 or B) (U//FOUO) the intended victim knows the nature and extent of the specific threat against him/her. 14.7.3.1.1.2 (U) MEANS, MANNER, AND DOCUMENTATION OF WARNING/NOTIFICATION OR DECISION NOT TO WARN (U//FOUO) The FBI employee, in consultation with his or her supervisor, must determine the means and manner of the warning, using the method most likely to provide direct notice to the intended victim. In some cases, this may require the assistance of a third party. The employee must document on an FD-999 the content of the warning, as well as when, where and by whom it was delivered to the intended victim. The FD-999 must be placed in a zero file or if 1 investigative methods are used, the appropriate investigative file. (U//FOUO) The employee, in consultation with his or her supervisor, may seek the assistance of another law enforcement agency to provide the warning. If this is done, the employee must document on an FD-999 that notice was provided by that law enforcement agency, as well as when, where and by whom (i.e., the name of the other agency's representative) it was delivered. The employee must also document the other agency's agreement to provide a timely warning. The FD-999 must be filed as specified above. (U//FOUO) Whenever time and circumstances permit, an employee's decision not to provide a warning in these circumstances must be approved by an ASAC or higher. In all cases, the reasons for not providing a warning must be documented by EC or similar successor form in a zero file or if investigative methods are used, the appropriate investigative file. 14.7.3.1.2 (U) WARNINGS WHEN INTENDED VICTIM IS IN CUSTODY OR IS A PROTECTEE (U//FOUO) When an employee has information that a person described below is an intended victim, the employee, in consultation with his or her supervisor, must expeditiously notify the law enforcement agency that has protective or custodial jurisdiction of the threatened person. (U//FOUO) This section applies when the intended victim is: A) (U//FOUO) a public official who, because of his/her official position, is provided a protective detail; B) (U//FOUO) a participant in the Witness Security Program that is administered by the United States Marshals Service; or C) (U//FOUO) detained or incarcerated. a (U//FOUO) If the equal or greater harm would occur to a Government informant or Agent as a result of his/her participation in an investigation, consideration should be given to extricating that individual from the investigation or taking other appropriate measures in order to minimize the risk. 14-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 (U//FOUO) This paragraph does not apply to employees serving on the security detail of the FBI Director or any other FBI protected persons when the threat is to the individual they protect. 14.7.3.1.2.1 (U) MEANS, MANNER, AND DOCUMENTATION OF WARNING/NOTIFICATION (U//FOUO) The employee, in consultation with his or her supervisor, may determine the means and manner of the notification. When providing notification, the employee shall provide as much information as possible regarding the threat and the credibility of the threat. The employee must document on an FD-999 what he or she informed the other law enforcement agency, and when, where, how (e.g., telephone call, email) and to whom the notice was delivered. The FD-999 must be placed in a zero file or if investigative methods are used, the appropriate investigative file. 14.7.3.2 (U) NOTIFICATION TO LAW ENFORCEMENT AGENCIES THAT HAVE INVESTIGATIVE JURISDICTION 14. 7.3.2.1 14.7.3.2.1.1 (U) EXPEDITIOUS NOTIFICATION (U) THREATS TO INTENDED PERSONS (U//FOUO) Except as provided in Sections 14.7.3.2.2, when an employee has information that a person (other than a person described above in Section 14.7.3.1.2) who is identified or can be identified through reasonable means is subject to a credible threat to his/her life or of serious bodily injury, the employee must attempt expeditiously to notify other law enforcement agencies that have investigative jurisdiction concerning the threat. 14.7.3.2.1.2 (U) THREATS TO OCCUPIED STRUCTURES OR CONVEYANCES (U//FOUO) When an employee has information that a structure or conveyance which can be identified through reasonable means is the subject of a credible threat which could cause a loss of life or serious bodily injury to its occupants, the employee, in consultation with his or her supervisor, must provide expeditious notification to other law enforcement agencies that have jurisdiction concerning the threat. 14.7.3.2.2 (U) EXCEPTIONS TO NOTIFICATION (U//FOUO) An employee need not attempt to notify another law enforcement agency that has investigative jurisdiction concerning a threat: A) (U//FOUO) when providing the notification to the other law enforcement agency is likely to cause equal or greater physical harm to one or more persons; or B) (U//FOUO) when the other law enforcement agency knows the nature and extent of the specific threat to the intended victim. (U//FOUO) Whenever time and circumstances permit, an employee's decision not to provide notification to another law enforcement agency in the foregoing circumstances must be Version Dated Octoher 15, 2011 14-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §14 approved by an ASAC or higher. In all cases, the reasons for an employee's decision not to provide notification must be documented in writing in a zero file or if investigative methods are used, the appropriate investigative file. 14.7.3.2.3 MEANS, MANNER, AND DOCUMENTATION OF NOTIFICATION (U//FOUO) The employee may determine the means and manner of the notification. The employee must document in writing in the applicable investigative file the content of the notification, and when, where, and to whom it was delivered. 14.7.4 {U / /FOUO) DISSEMINATION OF INFORMATION CONCERNING THREATS, POSSIBLE VIOLENCE OR DEMONSTRATIONS AGAINST FOREIGN ESTABLISHMENTS OR OFFICIALS IN THE UNITED STATES (U/ /FOUO) If information is received indicating a threat to life within the scope of Section 14.7, or possible violence or demonstrations against foreign establishments or officials in the United States, the field office case agent must immediately coordinate the matter with the FBIHQ SSA responsible for the case, who must notify the Department of State (DOS), United States Secret Service (USSS), and any other Government agencies that may have an interest. See Section IV of the 1973 FBI USSS MOU, which is available at http: //home.fbinet.fbi /DO/OGC/Memorandums%20of%20Understanding/ssprotective responsibilities.pdf for the FBI's information sharing responsibilities with the USSS in such cases. 14.7.5 (U) DISSEMINATION OF INFORMATION CONCERNING THREATS AGAINST THE PRESIDENT AND OTHER DESIGNATED OFFICIALS (U//FOUO) The United States Secret Service (USSS) has statutory authority to protect or to engage in certain activities to protect the President and certain other persons as specified in 18 U.S.C. § 3056. An MOU between the FBI and USSS specifies the FBI information that the USSS wants to receive in connection with its protective responsibilities. (U//FOUO) Detailed guidelines regarding threats against the President of the United States and other USSS protectees can be found in "Presidential and Presidential Staff Assassination, Kidnapping and Assault." (See the Violent Crimes PG) 14-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dcitec: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §15 15 (U) INTELLIGENCE ANALYSISAND PLANNING 15.1 (U) OVERVIEW (U//FOUO) The Attorney General's Guidelines for Domestic FBI Operations (AGG-Dom) provide specific guidance and authorization for intelligence analysis and planning. This authority enables the FBI to identify and understand trends, causes, and potential indicia of criminal activity and other threats to the United States that would not be apparent from the investigation of discrete matters alone. By means of intelligence analysis and planning, the FBI can more effectively discover criminal threats, threats to the national security, and other matters of national intelligence interest, and can provide the critical support needed for the effective discharge of its investigative responsibilities and other authorized activities. (AGG-Dom, Part IV) (U//FOUO) In carrying out its intelligence analysis and planning functions, the FBI is authorized to draw on all lawful sources of information, including analysis of historical information in FBI files (open and closed), records and database systems, and information collected from investigative activities permitted without opening an Assessment set forth in DIOG Section -.1.1. , //FOUO) Note: In the DIOG, the word "assessment" has two distinct meanings . The AGGDom authorizes as an investigative activity an "Assessment," which requires an authorized purpose as discussed in DIOG Section 5. The United States Intelligence Community (USIC), howev er, also uses the word "assessment" to describe written intelligence products, as discussed :n Section 15.6.1.2 below. 15.2 (U) PURPOSE 15.2.1 AND SCOPE (U) FUNCTIONS AUTHORIZED 'FOUO) The AGG-Dom authorizes the FBI to engage in intelligence analysis and planning to =acilitate and support investigative activities and other authorized activities. The functions orized include: A) (U//FOUO) Development of overviews and analyses concerning threats to and vulnerabilities of the United States and its interests, such as domain management as related to the FBI's responsibilities; B) (U//FOUO) Research and analysis to produce reports and assessments (analytical products) concerning matters derived from or relevant to investigative activities or other authorized FBI activities; and C) (U//FOUO) The operation of intelligence and information systems that facilitate and support investigations and analysis through the compilation and analysis of data and information on an ongoing basis. (AGG-Dom, Introduction B) 15-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October :S, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §15 15.2.2 (U) INTEGRATIONOFINTELLIGENCE ACTIVITIES (U//FOUO) In order to protect against national security and criminal threats through intelligencedriven operations, the FBI should integrate intelligence activities into all investigative efforts by: A) (U//FOUO) Systematically assessing particular geographic areas or sectors to identify potential threats, vulnerabilities, gaps, and collection opportunities in response to FBI collection requirements that support the broad range of FBI responsibilities ; B) (U//FOUO) Proactively directing resources to collect against potential threats and other matters of interest to the nation and the FBI, and developing new collection capabilities when needed; C) (U//FOUO) Continuously validating collection capabilities to ensure information integrity; D) (U//FOUO) Deliberately gathering information in response to articulated priority intelligence requirements using all available collection resources, then expeditiously preparing the collected information for analysis and dissemination and promptly disseminating it to appropriate partners at the local, state, national and foreign level ; and E) (U//FOUO) Purposefully evaluating the implications of collected information on current and emerging threat issues. 15.2.3 (U) ANALYSISAND PLANNINGNOT REQUIRINGTHEOPENINGOFAN ASSESSMENT{SEE DIOG SECTION5) (U//FOUO) Without opening an Assessment, an FBI employee may produce written intelligence products that include, but are not limited to, an Intelligence Assessment (analytical product) , Intelligence Bulletin and Geospatial Intelligence (mapping) from information already within FBI records. An FBI employee can also analyze information that is obtained pursuant to DIOG Section 5 .1.1. If the employee needs information in order to conduct desired analysis and planning that requires the use of Assessment investigative methods beyond those permitted in DIOG Section 5.1.1 , the employee must open a Type 4 Assessment in accordance with DIOG Sections 5.6.3.3 . The applicable 801H - 807H classification file (or other 801-series classification file as directed in the Intelligence Policy Implementation Guide (IPG)) must be used to document this analysis. See the IPG for file classification guidance . 15.3 (U) CIVILLIBERTIESAND PRIVACY (U) The FBI must collect intelligence critical to the FBI's ability to carry out its intelligence and law enforcement mission. While conducting intelligence analysis and planning , the FBI will conduct its activities in compliance with the Constitution , federal laws , the AGG-Dom and other relevant authorities in order to protect civil liberties and privacy. 15.4 (U) LEGALAUTHORITY (U) The FBI is an intelligence agency as well as a law enforcement agency . Accordingly , its basic functions extend beyond limited investigations of discrete matters , and include broader analytic and planning functions . The FBI's responsibilities in this area derive from various administrative and statutory sources. See, e.g., (i) 28 U.S .C. §§ 532 note (incorporating P.L. 108- Vcrs10'1 I 1 O toJcr 1 '011 15-2 CLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §15 458 §§ 2001-2003) and 534 note (incorporating P.L. 109-162 § 1107); and (ii) E.O. 12333 § 1.7(g). (U//FOUO) The scope of authorized activities under Part II of the AGG-Dom is not limited to "investigations" in a narrow sense, such as solving particular investigations or obtaining evidence for use in particular criminal prosecutions. Rather, the investigative activities authorized under the AGG-Dom may be properly used to provide critical information needed for broader analytic and intelligence purposes to facilitate the solution and prevention of crime, protect the national security, and further foreign intelligence objectives. These purposes include use of the information in intelligence analysis and planning under AGG-Dom, Part IV, and dissemination of the information to other law enforcement, USIC, and White House agencies under AGG-Dom, Part VI. Accordingly, information obtained at all stages of investigative activity is to be retained and disseminated for these purposes as provided in the AGG-Dom, or in FBI policy consistent with the AGG-Dom, regardless of whether it furthers investigative objectives in a narrower or more immediate sense. (AGG-Dom, Part II) 15.5 (U) INTELLIGENCE ANALYSISAND PLANNING- REQUIRINGA TYPE 4 ASSESSMENT ( //FOUO) If an FBI employee wishes to engage in intelligence analysis and planning that requires the collection or examination of information not available in existing FBI records or database systems, or from information that cannot be obtained using the activities authorized in :)JOG Section 5.1.1, a Type 4 Assessment must be opened and conducted in accordance with DIOG Section 5.6.3.3. 15.6 (U) AUTHORIZEDACTIVITIESIN INTELLIGENCEANALYSISAND PLANNING C The FBI may engage in intelligence analysis and planning to facilitate or support '! estigative activities authorized by the AGG-Dom or other legally authorized activities. -\.di vities the FBI may carry out as part of Intelligence Analysis and Planning include : 15.6.1 (U) STRATEGICINTELLIGENCE ANALYSIS FOUO) The FBI is authorized to develop overviews and analyses of threats to and - erabilities of the United States and its interests in areas related to the FBI's responsibilities, -~I ding domestic and international criminal threats and activities; domestic and international _ · ities, circumstances, and developments affecting the national security. FBI overviews and -_ e may encompass present , emergent, and potential threats and vulnerabilities, their ext and causes, and identification and analysis of means ofresponding to them. (AGG""'. Part IV) 15.6.1.1 (U) DOMAIN MANAGEMENT E FOUO) As part of Strategic Analysis Planning activities, the FBI may collect information rder to improve or facilitate "domain awareness" and may engage in "domain agement." "Domain management" is the systematic process by which the FBI develops _ -- -programmatic domain awareness and leverages its knowledge to enhance its ability to: ""roactively identify threats, vulnerabilities, and intelligence gaps; (ii) discover new _ rtuni ties for needed intelligence collection and prosecution; and (iii) set tripwires to 15-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide § 15 provide advance warning of national security and criminal threats. Tripwires are described in DIOG Section 11. Effective domain management enables the FBI to identify significant threats, detect vulnerabilities within its local and national domain, identify new sources and threat indicators , and recognize new trends so that resources can be appropriately allocated at the local level in accordance with national priorities and local threats . (U//FOUO) The field office "domain " is the territory for which a field office exercises responsibility , also known as the field office's area-of-responsibility (AOR) . Domain awareness is the: (i) strategic understanding of national security and criminal threats and vulnerabilities that exist in the domain; (ii) FBI's positioning to collect against those threats and vulnerabilities; and (iii) the ability to recognize intelligence gaps related to the domain. (U//FOUO) Through analysis of previously collected information, supplemented as necessary by properly authorized Type 4 Assessments , domain management should be undertaken at the local and national levels. All National Domain Assessments must be opened and coordinated by the Directorate of Intelligence (DI) . Examples of domain management activities include, but are not limited to: collection and mapping of data such as I-94 data, census crime statistics, investigative information , entities in the domain; analysis of trends; source development; and placement of tripwires. See DIOG Section 11 for further discussion of tripwires. Further guidance regarding domain management and examples of intelligence products are contained in the FBIHQ DI policy implementation guide (PG). (U//FOUO) All information collected during a Type 4 Domain Assessment must be documented in the appropriate Assessment file (801H - 807H classifications), or if obtained without opening an Assessment , in another 800-series classification file as directed in the DI PG. Any time a Type 4 Domain Assessment begins to focus on specific individual(s) , group(s), or organization(s) , whose activities may constitute a violation of federal criminal law or a threat to the national security , or identifies persons or entities who may be actual or potential targets of or vulnerable to federal criminal activities or national security threats, a separate Assessment (Type 1 & 2 Assessment or a Type 3 Assessment) or Predicated Investigation must be opened to collect information regarding the particular person , or the threat or vulnerability. (U//FOUO) FBIHQ DI provides specific guidance in its PG regarding, the opening , coordination and purpose for a field office and national domain Type 4 Assessments. 15.6.1.2 (U) WRITTEN INTELLIGENCE PRODUCTS (U//FOUO) The FBI is authorized to conduct research , analyze information, and prepare reports and intelligence assessments (analytical written products) concerning matters relevant to authorized FBI activities , such as: (i) reports and intelligence assessments (analytical product) concerning types of criminals or criminal activities; (ii) organized crime groups , terrorism, espionage , or other threats to the national security; (iii) foreign intelligence matters; or (iv) the scope and nature of criminal activity in particular geographic areas or sectors of the economy . (AGG-Dom , Part IV) (U//FOUO) Pursuant to Rule 16 of the Federal Rules of Criminal Procedure , 18 U.S.C . Section 3500, and Department of Justice (DOJ) policy, written intelligence products, VE.r~10nDated October 1r;, 20 11 15-4 CL SSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §15 including classified intelligence products, may be subject to discovery in a criminal prosecution , if they relate to an investigation or are produced from information gathered during an investigation. Therefore, a copy of written intelligence products that are directly related to an investigation must be filed in the appropriate investigative file(s) and must include appropriate classification markings. (U//FOUO) A sub-file named "INTELPRODS" exists for all investigative classifications, and a copy of all written intelligence products described above must be placed in the appropriate investigative classification INTELPRODS sub-file. 15.6.1.3 (U) UNITED STATES PERSON (USPER) INFORMATION (U//FOUO) Reports, Intelligence Assessments, and other FBI intelligence products should not contain USPER information, including the names of United States corporations or business entities, if the pertinent intelligence can be conveyed in an understandable way without including personally identifying information. (U//FOUO) Intelligenc e products prepared pursuant to this Section include, but are not limited to: Domain Management, Special Events Management Threat Assessments, Intelligence Assessments , Intelligence Bulletins, Intelligence Information Reports, Weapons of Mass Destruction (WMD) Scientific and Technical Assessments , and Regional Field Office Assessments. 15.6.1.4 (U) INTELLIGENCESYSTEMS (U//FOUO) The FBI is authorized to operate intelligence , identification, tracking, and information systems in support of authorized investigative activities, or for such other or additional purposes as may be legally authorized, such as intelligence and tracking systems relating to terrorists, gangs, or organized crime groups . (AGG-Dom, Part IV) (U//FOUO) These systems operate to facilitate and support investigations through the compilation and analysis of data and information on an ongoing basis. Information stored in the systems includes , but is not limited to: investigative files; records obtained from other government agencies through information sharing agreements; open source materials; raw data from FISA and Title III collections; data extracted from source materials such as names, organizations, addresses , and telephone numbers; USIC Foreign Intelligence Collection Requirements, FBI National Collection Requirements and Field Office Collection Requirements; threat reports from law enforcement or the general public; and human source reporting. Access to and use of data contained in these systems is directed by the policies go eming the particular system and the laws controlling the data contained therein. Analytic ·ool s such as link charting and geospatial or statistical software are used to analyze the mformation. l.: lf OUO) When developing a new database, the FBI Office of the General Counsel Privacy and Civil Liberties Unit must be consulted to determine whether a Privacy Impact Assessment PL\ ) must be prepared. 15-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY --- ----~ - UNCLASSIFIED §15 - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (U) GEOSPATIALINTELLIGENCE (GEO INT) 15.6.1.5 (U//FOUO) Geospatial Intelligence (GEO INT) is the exploitation and analysis of imagery and geospatial information to describe, assess and visually depict physical features and geographically-referenced activities on the Earth. As an intelligence discipline, GEOINT in the FBI encompasses all the activities involved in the collection, analysis, and exploitation of spatial information in order to gain knowledge about the national security /criminal environment and the visual depiction of that knowledge. GEO INT also represents a type of information or intelligence product, namely the information and knowledge that is produced as a result of the discipline's activities. (U//FOUO) Mapping is an activity under GEO INT and may be used in Assessments (Domain Management; Collection Management) and Predicated Investigations. Vers,on D tea: October 15, 2011 15-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY ~~---------................. ...... UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 16 (U) UNDISCLOSEDPARTICIPATION(UDP) 16.1 (U) OVERVIEW (U//FOUO) Undisclosed participation (UDP) takes place when anyone acting on behalf of the FBI, including but not limited to an FBI employee or confidential human source (CHS), becomes a member or participates in the activity of an organization on behalf of the U.S. Government (USG) without disclosing FBI affiliation to an appropriate official of the organization. 16.1.1 (U) AUTHORITIES (U) The FBI derives its authority to engage in UDP in organizations as part of its investigative and intelligence collection missions from two primary sources. (U) First, Executive Order (E.O.) 12333 broadly establishes policy for the United States Intelligence Community (USIC). Executive Order 12333 requires the adoption of procedures for undisclosed participation in organizations on behalf of elements of the USIC within the United States. Specifically, the Order provides" ... [n]o one acting on behalf of the Intelligence Commu nity may join or otherwise participate in any organization in the United States on behalf of the any element of the Intelligence Community without first disclosing such person's intelligence affiliation to appropriate officials of the organization, except in accordance with procedures established by the head of the Intelligence Community element concerned .... Such participation shall be authorized only if it is essential to achieving lawful purposes as determined by the Intelligence Community element head or designee." (E.O. 12333, Section 2.9, Undisclose d Participation in Organizations within the United States). The Order also provides, at Section 2.2, that "[n]othing in [E.O. 12333] shall be construed to apply to or interfere with any authorize d civil or criminal law enforcement responsibility of any department or agency." I U) Second, in addition to its role as member of the USIC, the FBI is also the primary criminal investigative agency of the federal government with authority and responsibility to investigate all ·:iolations of federal law that are not exclusively assigned to another federal agency. This includes the investigation of crimes involving international terrorism and espionage. As a riminal investigative agency, the FBI has the authority to engage in UDP as part of a Predicated Investigation or an Assessment. /FOUO) The FBI's UDP policy is designed to incorporate the FBI's responsibilities as both a member of the USIC and as the primary criminal investigative agency of the federal government J.11d,therefore, applies to all investigative and information collection activities of the FBI. It is mended to provide uniformity and clarity so that FBI employees have one set of standards to =ovem all UDP. As is the case throughout the DIOG, however, somewhat different constraints exist if the purpose of the activity is the collection of positive foreign intelligence that falls ut ide the FBI's law enforcement authority. Those constraints are reflected where applicable low. 16-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on D.ited: Ott ber 1c;, .::011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 16.1.2 (U) MITIGATION OFRISK (U//FOUO) The FBI's policy for UDP uses a risk Assessment model : higher approval levels are required for UDP that carries a greater risk to civil liberties because it is more intrusive. Accordingly, the policy draws a distinction between what is termed "sensitive UDP" and "nonsensitive UDP ." These categories focus on the type or purpose of the organization and draw on the concept in the Attorney General Guidelines for Domestic FBI Operations (AGG-Dom) of a "sensitive investigative matter" as the starting point for the distinction. 16.1.3 (U) SENSITIVEUDP DEFINED (U//FOUO) Sensitive UDP is the undisclosed participation in the activities of a political , religious, or media organization, an academic institution , an organization having an academic nexus , or an organization devoted to advocacy relating to social , religious, or political causes or the education of the public about such causes . 16.1.4 (U) NON-SENSITIVEUDP DEFINED (U//FOUO) Non-sensitive UDP is undisclosed participation in the activities of any other legitimate organization , such as a business or a club formed for recreational or social purposes. Any doubt about whether an organization falls within the Sensitive UDP category must be resolved by presuming the organization does fall within that category . 16.1.5 (U) TYPE OFACTIVITY (U//FOUO) The UDP policy also takes into account the type of activity in which an FBI employee or CHS will engage. For example , in Sensitive UDP , tasking a CHS or FBI employee to join an organization to obtain information about the organization that is not generally known to the public requires a higher approval level than obtaining information provided by an individual who is already a member of the organization . Conduct that may influence the exercise of First Amendment rights by members of the organization or the activities of the organization , the most intrusive UDP , requires legal review and executive approvals. Finally , the UDP policy does not apply to organizations that are not legitimate organizations , as defined below. 16.2 16.2.1 (U) PURPOSE, SCOPE, AND DEFINITIONS (U) ORGANIZATION (U//FOUO) An association of two or more individuals formed for any lawful purpose whose existence is formalized in some manner. The term includes , but is not limited to: social , politic al. fraternal , professional , business , academic , ethnic-affinity, and religious organizations and includes organizations that meet and communicate primarily on the Internet. For purposes of UDP, an organization does not include a loose group of friends, social contacts , or business associates who may share common interests but whose association lacks any formal structure (e.g., the Rotary is an organization; a group of friends who play poker or meet at a gym for athletics every weekend is not) . Verswn Dated· October 15, 2011 16-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 16.2.2 (U) LEGITIMATE §16 0RGANIZA TION (U//FOUO) An organization is "legitimate" when it is formed for a lawful purpose and its activities are primarily lawful. (Example: Traditional criminal organizations are not legitimate organizations because their primary purpose is to raise money through the commission of crime. An organization whose primary purpose is to engage in destruction of property as a means to bring public attention to commercial activities that harm the environment is also not a legitimate organization within the meaning of this definition because its primary purpose is to engage in criminal conduct. On the other hand, an organization that seeks to bring attention to a social or political cause by engaging primarily in lawful protest or advocacy, but also some acts of civil disobedience, is a legitimate organization; even though the organization may engage in some unlawful acts, the purpose for which it exists is a lawful one and its activities are primarily lawful.) Any doubt about whether an organization is "legitimate" must be resolved by presuming it is legitimate for purposes of the UDP policy. 16.2.3 (U) PARTICIPATION (U//FOUO) Taking part in the organization's activities and interacting with its members within the structure or framework of the organization, whether the individual is tasked to join the organization or is already a member is participation. Occasional social or infrequent ancillary business dealings with members of an organization do not constitute participation. In addition, passive "infrequent attendance 9" (five occasions or less) by a person who is not a member of the organization does not constitute "participation." A CHS or FBI employee who passively attends an organization's meetings may report any relevant information observed. Regardless of the number oftimes a CHS or FBI employee attends an organization's meetings, if he/she becomes involved in the organization's activities or acts with or on behalf of the organization, the CHS or FBI employee is "participating" for purposes of the UDP policy. (U//FOUO) Sensitive UDP may involve the following: A) (U// FOUO) Academic Institutions: Participation includes attending classes in person or taking courses on-line. Participation does not include registration: (1) solely for the purpose of obtaining education or training that is relevant to FBI employment or affiliation; or (2) to support credibility in a covert role, provided the FBI employee or confidential human source will not attend classes and will not utilize e-mail or other accounts affiliated with the academic institution to communicate with subjects of an investigation. (See note after paragraph C below) B) (U//FOUO) Media: Participation includes joining the staff of a publication or a mediacentered organization and other activity affecting a publication, such as submitting an article for publication. (See note after paragraph C below) C) (U//FOUO) Political: Participation includes joining or working on behalf of a political party at any level, a political action group or committee, or a committee formed for the purpose of electing an individual to public office. (See note below) (U// FOUO) At time of printing, Section 16.2.3 rule for passive "infrequent attendance" was pending review and approval by the Attorney General. Please always check the online DIOG available on - e FBI Intranet for the current and official DIOG. 16-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October l "i 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 (U//FOUO) Note: "infrequent attendance" (see footnote #8 above) at an event or activity of a sensitive organization as defined in DIOG Section 16.1.3 by a tasked CHS requires appro val as se\ fort.\\ \I\ the "SQecial Rule for Other Sensitive Organizations." See DIOG Sections 18.5.1.3.1 and 18.5.5.3.D . D) (U//FOUO) Religious: Participation includes joining the religious organization or participating in activities of the organization that are central to the function of the organization , whether or not open to the public. Attendance at a social event sponsored by the religious organization that is open to the public will generally not constitute "participation ." (U//FOUO) Note: "infrequent attendance" (see footnote #8 above) at a religious service by an employee or a tasked CHS requires approval as set forth in the "Special Rule for Religious Services." See DIOG Sections 18.5.1.3.1 and 18.5.5.3.C. (U//FOUO) Examples of Participation: A) (U//FOUO) Exampl e 1: An FBI CHS is tasked to begin attending religious services at a particular religious facility on a regular basis. Is this participation ? (U//FOUO) Respons e to Exampl e 1: This would constitute "participation" because religious services are central to the function of the religious organization and, from the outset , the FBI intends for the CHS to become a regular participant. B) (U//FOUO) Example 2: In a Predicated Investigations , an FBI CHS is tasked to attend , as a passive observer , the organizational meeting of "No Tree Unsaved," an environmental group that is being advertised as "more effective than ELF in saving the planet " and to report back on any relevant information learned. Is this participation ? (U//FOUO) Respons e to Exampl e 2: This is not "participation" because it is one-time or "infrequent attendance" (five occasions or less) by a person who is not a member of the group . If this tasking took place during an Assessment , SSA approval would be required before tasking a CHS to passively attend activities of a sensitive organization , as defined in DIOG Section 16.3 .1. C) (U//FOUO) Exampl e3: The CHS from Example 2 reports that the group has a mailing list and a twitter feed. The FBI tasks the CHS to sign up for both . Is the CHS now "participating " in No Tree Unsaved ? D) (U//FOUO) Response to Exampl e 3: By virtue of joining the mailing list or the twitter feed , the CHS is participating in the group. 16.2.3.1 (U) UNDISCLOSED PARTICIPATION (U//FOUO) Participation is "undisclosed" when anyone acting on behalf of the FBI, including but not limited to an FBI employee or CHS , participates in the activity of the organization on behalf of the USG without disclosing FBI affiliation to an appropriate official of the organization . A CHS who participates in an organization entirely on his own behalf and who is not tasked by the FBI to obtain information or engage in other activities in that organization is not engaging in UDP - regardless whether the CHS volunteers information to the FBI and regardless whether the CHS 's affiliation with the FBI is known. If the CHS is tasked to obtain specific information or to take specific action , his/her subsequent participation to fulfill that task is on behalf of the FBI. Vers10'1 Dated. Octohu 1~, 201: 16-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 16.2.3.2 (U / /FOUO) §16 INFLUENCING THE ACTIVITIESOF THE ORGANIZATION (U//FOUO) UDP influences the activities of the organization when it has a significant effect on the organization's agenda, course of business, core activities, or future direction. Simply voting or expressing an opinion on these matters as a member will generally not fall within this definition. 16.2.3.3 (U / /FOUO) INFLUENCING THE EXERCISEOF FIRST AMENDMENTRIGHTS (U//FOUO) UDP influences the exercise of First Amendment rights of the members of an organization when it substantially affects the agenda of an organization with respect to the advocacy of social, religious, or political causes, the education of the public about such causes, or the practice of religion. 16.2.3.4 (U) APPROPRIATEOFFICIAL (U//FOUO) An individual with actual or apparent authority to act on behalf of the organization in directing or authorizing its activities or monitoring its membership. If the CHS or FBI employee whose participation is at issue is an official of the organization, his or her knowledge alone is not sufficient to remove the participation from being UDP. Disclosure must be made to an additional official with actual or apparent authority to act on behalf of the organization in order for the activity of the CHS or FBI employee not to be UDP. 16.2.3.5 (U) SENSITIVEUNDISCLOSEDPARTICIPATION (U//FOUO) Undisclosed participation in the activity of: A) (U//FOUO) A political, religious, or media organization, an academic institution, or an organization having an academic nexus; or B) (U//FOUO) An organization that has as a significant purpose the advocacy of social, religious, or political causes or the education of the public about such causes; or C) (U//FOUO) Any other organization, in which UDP should, in the judgment of the FBI employee proposing the UDP or the approving official, be brought to the attention of senior FBI officials. (U//FOUO) Refer to the definitions in DLOG Section 10.2 relating to Sensitive Investigative Matter (SIM) for the definitions of political organization, religious organization, and academic nexus . The definition of "media organization" is broader than news media and includes any organization that has as a significant purpose the publication or broadcast of news or any other information. (U//FOUO) Any doubt about whether an organization has as a significant purpose the advocacy of social, religious, or political causes , the education of the public about such causes, or the practice of religion, must be resolved by presuming the organization has such a purpose . 16-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY VersJOI, uc~o'" J, tE': 1> 20.1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 16.2.3.6 (U) ALREADY A MEMBER OF THE ORGANIZATION OR A PARTICIPANT IN ITS ACTIVITIES (U//FOUO) This means that the individual who is acting on behalf of the FBI has not at any time been directed by the FBI , by a law enforcement agency or by a member USIC to join the organization or participate in its activities. 16.3 (U) REQUIREMENTS 16.3.1 (U) GENERAL FOR APPROVAL REQUIREMENTS (U//FOUO) UDP is permitted in either an Assessment or a Predicated Investigation subject to the approval requirements and limitations set forth below. The requirement for UDP authorization applies only when the information furnished by the CHS or FBI employee derives from being a member or participating in the activities of organization by the CHS or FBI employee . UDP of an FBI employee will always be considered as a tasked activity and subject to applicable supervisory approvals. Approval granted for UDP in an Assessment or investigation will generally apply for the duration of the Assessment or investigation unless there is a change of circumstances that implicate either another approval requirement in this subsection or the approval standards listed in subsection 16.5. The approval requirements set forth below are in addition to the required supervisory approvals for undercover operations (UCO) established by the Attorney General Guidelines for FBI Undercover Operations (AGG-UCO) and the required supervisory approvals to open and use a CHS established by the Attorney General Guidelines on the Use of FBI Confidential Human Sources (AGG-CHS) and the FBI's Confidential Human Source Policy Implementation Guide (CHSPG). 16.3.1.1 (U) UNDERCOVER ACTIVITY (U//FOUO) UDP as an undercover activity by an FBI Undercover Employee (UCE) is subject to the policy and procedures for undercover operations contained within the AGG-UCO , the AGG-Dom , and FBI policy , and may only occur in a Predicated Investigation . UDP as an undercover activity by a UCE is not permitted in an Assessment. 16.3.1.2 (U) CONCURRENT APPROVAL (U//FOUO) The approval to open a CHS and approval for UDP may be given concurrently if UDP is a reason the CHS is being opened in the first instance (e.g., a CHS is recruited and opened because he is a member of an anti-government militia group). If a CHS who is already opened will engage in UDP under circumstances that are significantly different than those originally approved (e.g., a CHS in a narcotics investigation is tasked to join a white supremacist group), new UDP approval is required. Other review and approval requirements as specified below may also apply. If a CHS already approved for UDP in one organization is tasked to participate in another organization on behalf of the FBI , new UDP approval is required. VEr-;10nD 1ted OctobE r 1 S, 2011 16-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY ------~-- UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 16.3.1.3 §16 (U) DELEGATION AND "ACTING" STATUS (U//FOUO) The approval authorities described in Sections 16.3 .1.4 and 16.3.1.5 may not be delegated. An FBI employee properly designated to serve in an "acting" capacity may take action to approve or disapprove as if regularly appointed to the position. (U//FOUO) Sections 16.3.1.4 and 16.3.1.5 below, which set forth the AG approved UDP policy, reference time periods for approvals. By FBI policy, some of these time periods have been shortened . The schedule established in Section 16.9, which sets forth the FBIHQ Approval Process for UDP Requests, is designed to ensure all FBIHQ approvals are obtained within the AGG-Dom required time periods. 16.3.1.4 (U) SPECIFIC REQUIREMENTS FOR GENERAL UNDISCLOSED PARTICIPATION (NONSENSITIVE UDP) 16.3.1.4.1 (U//FOUO) OBTAINING INFORMATION AS A MEMBER OR PARTICIPANT IN THE ACTIVITIES OF AN ORGANIZATION A) (U//FOUO) In Assessments, approval by a supervisory special agent (SSA) is required if: (i) a CHS who is already a member or participant in an organization is tasked to obtain information on behalf of the FBI, or (ii) a CHS will be tasked to join the organization or participate in its activities to obtain information. As noted above , approval for this UDP may be granted concurrently when approval to open the source is granted. B) (U//FOUO) In a Predicated Investigation , no supervisory approval is required if: (i) a CHS who is already a member or participant in an organization is tasked to obtain information on behalf of the FBI, or (ii) a CHS will be tasked to join the organization or participate in its activities to obtain information. SSA approval is required to task an FBI employee to join the organization or participate in its activities to obtain information. If the UDP is part of an undercover operation (UCO) , approval requirements for that operation apply , including review by the CDC and approval of the SAC. 16.3.1.4.2 (U //FOUO) ENGAGING IN CONDUCT FOR THE PURPOSE OF INFLUENCING THE ACTIVITIES OF THE ORGANIZATION OR CONDUCT THAT MAY INFLUENCE THE EXERCISE OF FIRST AMENDMENT RIGHTS BY MEMBERS OF THE ORGANIZATION (U//FOUO) Regardless of prior membership or participation: A) (U//FOUO) In an Assessment , a CHS participating in an organization in an undisclosed capacity is not permitted to engage in conduct on behalf of the FBI for the purpose of influencing the activities of the organization or that may influence the exercise of First Amendment rights by members of the organization . B) (U//FOUO) In a Predicated Investigation, if a CHS or FBI employee is to engage in conduct on behalf of the FBI for the purpose of influencing the activities of an organization , review by the CDC and approval by the SAC are required. C) (U//FOUO) In a Predicated Investigation , if a CHS or FBI employee is to engage in conduct that may influence the exercise of First Amendment rights by members of the organization , prior review by the Office of General Counsel (OGC) is required. If OGC determines that the UDP is not likely to influence the exercise of First Amendment rights by members of the 16-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY VErsion Dated. 0<.tober 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONL y Domestic Investigations and Operations Guide §16 organjza6on , tbe Assistant Director (AD) of'the FBJ Beaoquart ers op erarjonaJ J;vision exercising oversight for the investigation may approve the UDP. If the UDP is part of an UCO, approval requirements for that operation apply. If approved , notification must be made by the requesting field office to the Sensitive Operations Review Committee (SORC) within 10 days of approval. D) (U//FOUO) In a Predicated Investigation, if a CHS or FBI employee is to engage in conduct that is intended to influence the exercise of First Amendment rights by members of the organization, or if there has been a determination by OGC that the UDP is likely to influence the exercise of First Amendment rights by members of the organization , prior approval by the Director, the Deputy Director, or an Executive Assistant Director is required . Such requests will be considered following review by OGC and other review required by FBI policy, such as that conducted by the Undercover Operations Review Committee. In determining whether to approve such activity , the approving official will consider whether such UDP is necessary to meet a significant investigative goal that cannot be achieved without this level of participation. If approved , notification must be made by the requesting field office to the SORC within 10 days of approval. 16.3.1.5 (U) SPECIFIC REQUIREMENTS FOR SENSITIVE UNDISCLOSED PARTICIPATION (SENSITIVE UDP) 16.3.1.5.1 (U//FOUO) 0BTAININGINFORMATJON ASA MEMBER ORA PARTICIPANT IN THE ACTIVITIES OF A SENSITIVE ORGANIZATION A) (U//FOUO) Subject to subsection 16.3.1.5.2 below, in Assessments and Predicated Investigations , if the CHS is already a member of the organization or a participant in its activities and is tasked to obtain information, SSA approval is required. As noted above , when a CHS is opened to conduct these activities , SSA approval for UDP may be granted concurrently when the source is opened. B) (U//FOUO) In Assessments and Predicated Investigations, if a CHS or FBI employee is tasked to join an organization or participate in its activities and obtain information, review by the CDC and prior approval of the SAC is required. If approved, the field office must notify the SORC within 10 days following this approval. If the UDP is part of an UCO , approval requirements for that operation apply. 16.3.1.5.2 (U //FOUO) OBTAINING "INSIDER 11 INFORMATION DURING AN ASSESSMENT (U//FOUO) If a CHS , who is already a member of or participant in a sensitive organization, is tasked to obtain information that is not generally known to regular members or participants, CDC review and prior SAC approval are required. If the CHS is tasked to join the organization for the purpose of obtaining this type of information , review by OGC and approval by the operational division's AD with program oversight responsibility are required. If UDP is approved , the field office must notify the SORC within 10 days. 16.3.1.5.3 (U //FOUO) ENGAGING IN CONDUCT THAT MAY INFLUENCE THE ACTIVITIES OF THE ORGANIZATION OR THE EXERCISE OF FIRST AMENDMENT RIGHTS BY MEMBERS OF THE ORGANIZATION (U//FOUO) Regardless of prior membership or participation status: Vers10n Dated· Octohu 1s,201: 16-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 A) (U//FOUO) In an Assessment, a CHS participating in an organization in an undisclosed capacity is not permitted to engage in conduct on behalf of the FBI for the purpose of influencing the activities of the organization or conduct that may influence the exercise of First Amendment rights by members of the organization. B) (U//FOUO) In a Predicated Investigation , if a CHS or FBI employee is to engage in conduct on behalf of the FBI for the purpose of influencing the activities of an organization or conduct that may influence the exercise of First Amendment rights by members of the organization, prior review by OGC is required. If OGC determines that the UDP is not likely to influence the exercise of First Amendment rights by members of the organization, the AD of the FBI Headquarters operational division exercising oversight for the investigation may approve the UDP. If approved, the requesting field office must notify the SORC within 10 days of approval. C) (U//FOUO) In a Predicated Investigation, if a CHS or FBI employee is to engage in conduct on behalf of the FBI that is intended to influence the exercise of First Amendment rights by members of the organization, or if there has been a determination by OGC that the UDP is likely to influence the exercise of First amendment rights by members of the organization, prior approval by the Director is required. The Director will only consider such requests following review by OGC and the SORC or other similar review, including that conducted by the Undercover Operations Review Committee. In determining whether to approve such activity, the Director will consider whether such UDP is necessary to meet a significant investigative goal that cannot be achieved without this level of participation. 16.4 (U) SUPERVISORY APPROVAL NOT REQUIRED C' FOUO) Participation in the activities of an organization do es not require supervisory approval: under the following circumstances A) (U//FOUO) A CHS, who is already a member of an organization or who joins on his or her own behalf, volunteers information not in response to a specific request or tasking by the FBI. B) (U//FOUO) The information to be obtained will derive solely from attending events or activities that are open to the general public on the same terms and conditions as members of the general public. Note: If the public event is a religious service, see the "Special Rule for Religious Services" in DIOG Section 18.5.1.3.1.1. If the attendance is at an event or activity of a sensitive organization, see the "Special Rule of Other Sensitive Organizations" in DIOG Section 18.5.1.3.1.2. C) (U//FOUO) The organization is an entity that is openly acknowledged by a foreign government to be directed or operated by that foreign government. D) (U//FOUO) The organization is reasonably believed to be acting on behalf of a foreign power and its U.S.-based membership is reasonably believed to consist primarily of individuals who are not United States persons (USPERs). E) (U//FOUO) The organization is not considered a legitimate organization because it was not formed for a lawful purpose or because its primary purpose is to engage in unlawful activity. (Note: Some organizations may have a lawful purpose but also contain one or more smaller factions that are dedicated to committing criminal acts or otherwise violating the Jaws of the United States. Authorization is not required if the participation is entirely limited to the activity of the smaller faction. Any doubt about whether the UDP can or will be so limited should be resolved by assuming it cannot be so limited.) 16-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY V ' '>I I Jc tE •: Uc~o ,..,r l 'i 20 L l UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide § 16 16.5 (U) STANDARDS FOR REVIEW AND APPROVAL (U//FOUO) An FBI employee proposing UDP or an approving official reviewing a request for UDP must consider the following factors: A) (U//FOUO) The potential benefits to national security or the public welfare to be achieved by obtaining information through the undisclosed participation in the organization; B) (U//FOUO) Whether the proposed course of action is a reasonable means to achieve those benefits and is appropriate under the circumstances; C) (U//FOUO) Whether the course of action is the least intrusive investigative method feasible under the circumstances; D) (U//FOUO) Whether the anticipated benefits outweigh any adverse impact on civil liberties , privacy, or other rights that may be affected; and E) (U//FOUO) Whether there is a foreseeable risk of more than a de minimis adverse impact on civil liberties , privacy, or other rights and, if so, whether appropriate safeguards including limits on duration and scope, have been considered and will be imposed to ensure adherence with applicable law and to minimize such risk. (U//FOUO) For UDP undertaken to collect foreign intelligence that does not concern criminal activities or threats to the national security ("positive foreign intelligence"), an approving official must determine, in addition to the factors listed above, that such participation: A) (U//FOUO) Is consistent with the admonition in the AGG-Dom to operate openly and consensually with USPERs to the extent practicable; and B) (U//FOUO) Is essential to achieving lawful purposes. (U//FOUO) In addition to the considerations specified above, use of a CHS is subject to the policy and procedures specified in the AGG-CHS and the FBI's CHSPG. If there is any inconsistency between the CHSPG and this policy, this policy controls. (U//FOUO) Participation by an FBI employee in an undercover capacity is subject to the policy and procedures for undercover operations contained within the Attorney General Guidelines for FBI Undercover Activities (AGG-UCO), the AGG-Dom and FBI policy. (See DIOG Section 18, the Undercover and Sensitive Operations PG, and the National Security Undercover Operations (NSUCO) PG. (U//FOUO) Questions concerning UDP should be discussed with the CDC and OGC. Questions about whether or not an organization is considered a "legitimate" organization must be referred to OGC . 16.6 (U) REQUESTS FOR APPROVAL OF UNDISCLOSED PARTICIPATION (U//FOUO) SSA approval for UDP must be documented in an appropriate file 10. The documentation must indicate that the SSA considered the factors set forth in subsections 16.5 in approving the proposed UDP. The documentation must also identify or describe the organization, 10 (U//FOUO) If the UDP is for a CHS , the approval must be documented in the CHS's DELTA file. The approval document must reference the investigative file in which UDP will be conducted. Vers10n Dated: October 15, 2011 16-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 describe the anticipated participation by the CHS or FBI employee in the organization and the expected duration of that participation, contain an explanation why UDP is the least intrusive alternative feasible under the circumstances , and, if the purpose of the investigation or Assessment is the collection of foreign intelligence from USPERs who are members of the organization, contain an explanation of why dealing openly and consensually with those persons is not feasible. (U//FOUO) A UDP request must contain the following information: A) (U//FOUO) The name of the organization and a description of its mission and activity. B) (U//FOUO) A description of the investigative or Assessment plan with specific details regarding the anticipated participation by the CHS or FBI employee in the organization; an explanation of how such participation will further the Assessment or Predicated Investigation or assist in the collection of foreign intelligence; and a statement regarding the expected duration of the UDP. C) (U//FOUO) An explanation why UDP is the least intrusive alternative feasible under the circumstances , and additionally, if the purpose of the investigation or Assessment is the collection of foreign intelligence from USPERs who are members of the organization , an explanation why dealing openly and consensually with those persons is not feasible. D) (U//FOUO) An explanation whether the participation in the organization by the CHS or FBI employee is intended to influence the activities of the organization or may influence the exercise of First Amendment rights by members of the organization , and , if it may , how it might influence these activities. E) (U//F OUO) A description of any safeguards that will be implemented to minimize the impact on the exercise of First Amendment rights , if applicable. F) (U//F OUO) If expedited review is requested, a description of the operational reasons for that request and a statement of the date by which the request must be approved or denied. · 'FOUO) Review of UDP requests should be accomplished in an expeditious manner. In all e .'ents, rev iew and approval by FBI Headquarters elements should be accomplished within 30 ::- of the submission of the request. If an earlier approval is needed for operational reasons , the -i for expedited review must be clearly stated in the request. Approval by an FBI eadqua rters element will be noted in correspondence returned to the requesting field office that is ·o be retained in the appropriate investigative file. 16.7 (U) DURATION QUO) The duration of UDP is limited by the Predicated Investigation or Assessment in h it is authorized and must be terminated at the conclusion of the investigation or the -: e- men t unless: (i) the Assessment results in the opening of a Predicated Investigation as to - · h the UDP will contribute, or (ii) circumstances warrant the temporary continuation of the TIP by the CHS in the organization because a new Assessment or Predicated Investigation is ed that will utilize the CHS 's placement and such temporarily-continued UDP activity is _ ·e·. ·ed by the CDC and approved by an ASAC. Future tasking to join or participate in the · . tie of an organization in which a CHS or undercover employee (UCE) was previously a _ .. · er requires new approval. 16-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY \, ,r~l' I" Jc tE L . oc•o·i •r l ; 20 l UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide § 16 16.8 (U / /FOUO) 16.8.1 SENSITIVE OPERATIONS REVIEW COMMITTEE(SORC) {U//FOUO) SORCNOTIFICATION (U//FOUO) As indicated above, the field office will provide notification to the SORC, through the AD of the FBI Headquarters division with oversight responsibility for the investigation or Assessment concerning the following approved UDP: A) (U//FOUO) If in the course of an Assessment involving sensitive UDP, a CHS is tasked to join an organization or participate in its activities , or B) (U//FOUO) In the course of a Predicated Investigation involving either sensitive or nonsensitive UDP, a CHS or FBI employee is tasked to undertake a role that may tend to influence the exercise of First Amendment rights by members of the organization but that OGC has determined is not likely to influence the exercise of such rights . (U//FOUO) Such notifications will be received by the FBI staff supporting the SORC. The SORC will receive reports of such UDP from the supporting staff on a schedule and in a form to be determined by the SORC . 16.8.2 (U//FOUO) SORCREVIEW (U//FOUO) The SORC will review any proposed sensitive UDP in an organization that is purposely taken to influence the exercise of First Amendment rights by members of the organization or that has been determined by OGC to likely influence the organization's activity. The request will be reviewed by the OGC which will provide advice to the SORC on the matter. The SORC will prepare a written recommendation regarding the request and forward the request and its recommendation to the Director for approval. The decision of the Director will be documented and forwarded to the appropriate field office. (U//FOUO) For more details regarding the organization and functions of the SORC, see DIOG Section 10.2 above and Section 16.9 below . 16.9 16. 9.1 (U) FBIHQAPPROVAL PROCESS OF UDP REQUESTS {U) SUBMITTINGTHE UDP REQUESTTO FBJHQ (U//FOUO) After appropriate coordination and approval within the field office, a UDP request to FBIHQ must be submitted with an EC addressed to the appropriate FBIHQ operational unit with responsibility for oversight of the investigation. The EC must contain the information required by subsection 16.6 and request approval of the UDP. If the proposed UDP will require review by the SORC, the EC should also address the factors the SORC will consider in making its recommendation to the Director (see DIOG Section 10.2.3). If expedited review is required, the circumstances requiring expedition must be clearly delineated in the EC, including the date by which the field office or FBIHQ division requires the determination. Review and approval authorities will take note of these special circumstances and complete their actions as expeditiously as possible. The time frames set forth below in sections 16.9.2 and 16.9.3 will apply to routine UDP requests. Absent unusual circumstances, the FBIHQ approval processes Vers10n D 1 O tob r 1 ~O 11 16-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 discussed below should be completed within 30 calendar days from the receipt of the initial submission by the field office or FBIHQ division. (U//FOU O) Note: A CHS with prior UDP authority may require new UDP authority if his/her role within a particular organization changes. For example, in a Predicated Investigation with SAC approval a CHS may be tasked to join an organization and participate in its activities. If the CHS subsequently moves into a position where the level of participation may be seen as influencing the activities of the organization, then new UDP approval would be required. While the new UDP approval request is pending at FBIHQ, the field office may continue to accept intellige nce from the CHS but may not actively task the CHS to participate in any activities beyond those already approved under the prior UDP. 16.9.2 (U//FOUO) ASSESSMENTS- CHSsTASKEDTOJOINSENSITIVE ORGANIZATIONSAND OBTAININSIDERINFORMATION (U//FOUO) In Assessments, if the UDP is considered sensitive and involves tasking a CHS to join an organization for the purpose of obtaining insider information, the FBIHQ operational unit with responsibility for oversight of the Assessment will prepare a response EC for review by OGC (Investigative Law Unit (ILU) in criminal, DT, WMDD, and CyD investigations and • rational Security Law Branch (NSLB) in national security investigations) and approval by the AD of the operational Division. The reviewing OGC unit and the operational division AD will apply the standards in Section 16.5 above in reviewing and deciding whether to approve. This action should be completed within 10 business days of receipt of the request from the field office. Notice to the SORC will be included in the response EC and satisfies the requirement for notice by the field office. 16.9.3 (U / /FOUO) PREDICATEDINVEST/GATIONS - UDP REQUESTSINTENDEDTO OR WHICHMAY INFLUENCETHEACTIVITIESOFAN ORGANIZATIONOR THE EXERCISEOFFIRST AMENDMENTRIGHTSBY ITS MEMBERS , ,/FOUO) When the field office determines that UDP during a Predicated Investigation is intended to or may influence the activities of an organization or the exercise of First Amendment rights of the organization's members: A) (U//FOUO) Within three (3) business days of the receipt of the EC, the responsible FBIHQ operational unit must submit the field office's EC to OGC (Attention ILU in criminal, DT, WMDD and CyD investigations or Attention NSLB, in national security investigations) for a determination: (1) whether the UDP is intended or likely to influence the activities of the organization or the exercise of First Amendment rights of the members of the organization; (2) if the UDP is intended or likely to influence the activities of the organization, whether or not it is intended or likely to influence the exercise of First Amendment rights of the members of the organization. B) (U//FOUO) Within five (5) business days of the receipt of the EC from the FBIHQ operational unit, OGC must review the request and submit its written determination as follows: 1) (U//FOUO) If OGC determines the UDP is not likely to influence the activities of the organization or the exercise of First Amendment rights of the members of the organization, the request, together with OGC's written determination, must be returned to the 16-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 responsible FBIHQ operational unit. The responsible FBIHQ operational unit must advise the requesting field office and the SORC of OGC's determination by EC within five (5) business days of receipt. Upon receiving this advice, the requesting field office must then obtain the appropriate UDP approval at the field office level pursuant to subsections 16.3.1.4, 16.3.1.5, and 16.5. 2) (U//FOUO) If OGC determines the UDP is likely to influence the activities of the organization but is not likely to influence the exercise of First Amendment rights of the members of the organization, OGC must provide a written determination to the responsible FBIHQ operational unit. The responsible FBIHQ operational unit must include OGC's determination in a recommendation EC to the responsible AD within five (5) business days. The responsible AD must determine within ten (10) business days whether to grant or deny the UDP applying the standards established in Section 16.5 above. Whether the responsible AD approves or denies the UDP, the responsible FBIHQ operational unit must notify by EC the field office and the SORC within three (3) business days of the AD's decision . 3) (U//FOUO) If OGC determines the UDP is likely to influence the exercise of First Amendment rights of the members of the organization: a) (U//FOUO) For non-sensitive UDP, OGC must provide a written determination to the responsible FBIHQ operational unit. Within five (5) business days, the responsible FBIHQ operational unit must include OGC's determination in a recommendation EC to the Director , Deputy Director, or Executive Director, as appropriate. The approving official must determine within ten (10) business days whether to grant or deny the UDP applying the standards established in Section 16.5 above. Whether the approving official approves or denies the UDP, the responsible FBIHQ operational unit must notify the SORC and requesting field office within three (3) business days of the decision. b) (U//FOUO) For sensitive UDP, OGC must provide a written determination to the responsible FBIHQ operational unit and to the SORC. Within five (5) business days, the responsible FBIHQ operational unit must submit an EC setting forth its recommendation to the SORC for consideration. The SORC must review the request along with OGC's determination and provide a recommendation regarding approval or disapproval to the Director within thirty (30) calendar days of the initial submission from the field office absent unusual circumstances. The SORC staff must include the SORC's recommendation in a recommendation EC to the Director. The Director will determine whether to grant or deny the UDP applying the standards established in Section 16.5 above. The responsible FBIHQ operational unit must notify the requesting field office and the SORC by EC of the Director's decision. 16.9.4 (U//FOUO) PROCEDURESFORAPPROVINGEMERGENCYUDP REQUESTSTHAT OTHERWISEREQUIREFBJHQ APPROVAL (U//FOUO) FBI policy permits departures from DIOG requirements in special circumstances (see DIOG Section 2.7). IfUDP that would otherwise require FBIBQ approval (e.g., an activity intended to influence the activity of an organization, or influence members of an organization First Amendment rights) is urgently needed because of the immediacy or gravity of a threat to the safety of persons or property, threats to the national security, or loss of a significant investigative opportunity, the SAC, with concurrence from the Deputy Assistant Director (DAD) of the FBIBQ operational section with oversight responsibilities for the investigation and a Version Dated: October 15, 2011 16-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 Deputy General Counsel of OGC, may authorize the UDP. As soon as practicable after granting emergency UDP authority, but within 48 hours, the SAC or the FBIHQ DAD must provide an EC to the SORC , the operational division AD, and the GC describing the circumstances and n essity for authorizing emergency UDP, as well as whether continuing UDP authority is being reque sted. · 'FOUO) Upon receipt of the EC, the SORC staff shall obtain a determination from the releYant OGC Deputy General Counsel whether AD or Director approval is required and handle • e matter accordingly. The operational division AD may disapprove the continuation of the CDP. If the UDP activity is continued and the level of UDP would have required SORC ~on ideration and Director approval if proposed in the normal course, the SORC staff will notify o er members of the SORC and describe the UDP. Unless a SORC member objects to the UDP n receiving notice from the SORC staff, the UDP may continue until it is reviewed at the next - hedul ed SORC meeting when the SORC will make a formal recommendation to the Director ether the activity should continue. If a SORC member objects to the level of UDP activity, an hoc meeting must be called. U 'FOUO) Notwithstanding the above, all UDP must be carried out in a manner consistent with - e Const itution and the laws of the United States . 16.10 (U) UDP EXAMPLES A) (U//FOUO) Example A: Andrew is a bartender in a local bar. He hears customers talking about a plan to bring merchandise stolen from a freight container into the store next door and offer it for sale. Andrew contacts the FBI and tells the duty agent about the conversation. The agent taking the complaint asks Andrew if he would be interested in continuing to provide updates on this plan as he hears about it. Ultimately , the bartender is opened as a CHS. (U/FOUO) Analysis A: This is not UDP in an organization. Andrew is participating in the conversations at the bar (not "participating" in an "organization's" activities). No UDP authori zation is required . B) (U//FOUO) Example B: Bart works on the loading dock of a regional distribution center. Truck deliveries from manufacturers are made to the distribution center ; the merchandise is off loaded and organized for shipment throughout the country in company trucks. Bart observes that delivery trucks frequently deliver counterfeit products with the full knowledge of the manager. These products are then merged with other products for shipment to retail stores. Bart mentions this to an FBI agent and agrees to provide the FBI information on a regular basis about the operation . Bart is opened as a CHS and is told to record the license plates of trucks delivering counterfeit merchandise , the names of drivers, and the names of employees who assist in the ring. (U//FOUO) Analysis B: This is UDP in an organization : Bart was initially acting on his own behalf in participating in the activitie s of the organization , but he is now participating on behalf of the FBI because he has been tasked to obtain specific information. In an Assessment, SSA approval is required for this non-sensitive UDP which may be given at the same time the individual is opened as a CHS . In a Predicated Investigation , no additional approval is required to utilize the CHS in this manner. Please note: there is adequate predication in the example discussed above to open a Predicated Investigation . 16-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 C) (U//FOUO) Example C: Cindy regularly spends Saturday with a local group known as "friends of the environment" that undertakes cleanup projects, such as removing rubbish from waterfront areas and wilderness trail parks. Cindy hears members of the group discussing a large commercial development that is under construction taking up what had been a picturesque spot on the river. Like other members of the group Cindy is outraged at developers who promoted the development and with city officials who approved it. She hears some members of the group discussing Citizen's Alliance, another organization to which they belong. Citizen's Alliance, in addition to holding peaceful demonstrations about the lack of environmental concern the project is showing, plans to take a more activist role in preventing the construction from moving forward. Cindy is uncomfortable with that idea, and she contacts the FBI about Citizen's Alliance. The FBI has limited source reporting that Citizen's Alliance is responsible for damage to cell phone towers built along a wilderness trail. The FBI asks Cindy to join Citizen's Alliance and to report to the FBI on its activities. Cindy agrees and the FBI office wants to open Cindy as a CHS. (U//FOUO) Analysis C: UDP approval is required. Because Citizen's Alliance advocates through demonstrations and public education about environmental issues, it is a legitimate group even though it may also be using destruction of property as a tool to deliver its message. The Citizen's Alliance purpose and activities make the participation by the CHS "sensitive UDP." These facts, i.e., source reporting that the group is responsible for the cell phone towers and Cindy's reporting that the group is planning a more activist role with respect to the new development, would support opening an Assessment on the group. Sensitive UDP during an Assessment requires CDC review and SAC approval to task a CHS to join and report on general information about the group. Concurrent approval can be requested in an EC to open Cindy as a CHS and approve her UDP in this sensitive organization. The SORC must be notified within 10 business days of the UDP approval. D) (U//FOUO) Example D: Later, a Predicated Investigation is opened on the Citizen's Alliance based on confirmation of the reports about damage to the cell phone towers. Cindy, who is now a member of Citizen's Alliance, is asked to provide information about the group, such as its membership and how it raises money. Cindy tells her handling agent that information is very tightly held within the organization. (U//FOUO) Analysis D: CDC review, SAC approval, and notice to the SORC are required for this new tasking. Although now a member of the group, Cindy first joined Citizen's Alliance at the direction of the FBI; accordingly, her status will always be as someone tasked to join and provide information. E) (U//FOUO) Example E: Cindy is asked to be the secretary of the Citizen's Alliance (a sensitive organization). This position involves performing administrative tasks and taking notes at the group's meetings. As a CHS, Cindy wants to continue to provide information to the FBI about the group's possible criminal activities. (U//FOUO) Analysis E: The field office submits the request to FBIHQ to obtain a determination whether Cindy's UDP may influence the activities of the organization or the exercise of First Amendment rights by its members. Absent other facts indicating that Cindy's position is something more than merely administrative, OGC would conclude that Cindy's position would not likely influence the activities of the organization nor the exercise of First Amendment rights by its members. The request, together with OGC's written determination, will be returned to the responsible FBIHQ operational unit, which will advise the requesting field office and the SORC of OGC' s determination. The field office will then be responsible for approving or denying the UDP request pursuant to subsections 16.3.1.5, and 16.5. Version Dated: October 15, 2011 16-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 F) (U/ /FOUO) Example F: Cindy has now become a key member of Citizen's Alliance (a sensitive organization) and she has been elected to the position of "activities chairman." The role includes planning and organizing peaceful, lawful demonstrations. Cindy wants to continue providing the FBI with information about the group's possible criminal activities. (U//FOUO) Analysis F: Being selected to this position of authority within the organization while being a CHS for the FBI is UDP that may influence the activities of the organization or the exercise of First Amendment rights of its members. Therefore, prior review by OGC is required before tasking her. OGC would conclude that Cindy's role as activities chairman would likely influence the activities of the organization. Additional facts would be needed to determine whether Cindy's activities may influence the exercise of the members' First Amendment rights. The operational AD would be able to approve the UDP if First Amendment rights are not likely to be impacted. However, if the facts indicate that Cindy may affect or have a pivotal role in the group's decision making process when determining how, when or where it will exercise First Amendment rights, OGC would conclude that Cindy's new role is likely to have an influence on the First Amendment rights of members of the organization. This determination would require review by the SORC and approval by the Director. G) (U/FOUO) Example G: An international terrorism Type 3 Assessment is opened seeking information about the connections John may have to those who are associated with supporting terrorist organizations. There is intelligence reporting that John meets with Paul at a local church where he (Paul) solicits funds from church members to support an organization that is affiliated with terrorism. The case agent tasks a CHS to attend a religious service that is open to the public to see if John is meeting with Paul. The CHS is tasked to attend up to 5 times over the course of 3 months but never sees John at these services. The agent now wants to task a different CHS to attend the next five services to see if he can observe John meeting with Paul. (U/FOUO) Analysis G: The attendance by the first CHS at five religious services open to the public is not considered UDP. Passive attendance on five occasions or less (see footnote #8 above) by a person who is not a member of the organization is not considered "participation" in the affairs of the organization for UDP purposes. However, the "Special Rule for Religious Services" requires the agent to obtain the prior approval of the SAC because the CHS was tasked to attend the religious service during an Assessment (SSA approval is required for Predicated Investigations). (U/FOUO) If the agent tasked the first CHS to attend more than five services or take an active role while attending those services, it would require sensitive UDP approvals, i.e., review by the CDC, approval by the SAC, and notice to the SORC. The agent does not avoid the UDP requirements by tasking a different CHS to perform the same task (looking for John to meet with Paul) for an additional five services. (U/FOUO) Even if the tasking of the second CHS were for a different purpose and part of a different Assessment or Predicated Investigation, ongoing or long-term attendance at a religious service may give the appearance that the FBI is monitoring First Amendmentprotected activity. In these circumstances, employees should consult with their supervisor and the CDC or OGC as to whether additional review or approval is appropriate. H ( /FOUO) Example H: A local non-affiliated church holds Sunday services open to the public in a strip mall. Other businesses in the strip mall include a gun dealer and an "army navy store" selling survival equipment and military-style clothing. The minister who preaches at the Sunday service is also the owner of the "army-navy store." The FBI receives a tip that on the following Sunday a noted survivalist, who is also a major in the Freedom Militia, a 16-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October l 5, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 predicated domestic terrorist group, will be speaking at the church. The Major is a predicated subject in another investigation. What approvals are needed to task a CHS to attend the service at which the Major will speak? (U//FOUO) Analysis H: The CHS is not a regular attendee and is only being tasked to attend a single service for the purpose of trying to locate an FBI subject. The CHS's attendance under these circumstances would not be considered "participation" for purposes of UDP. As set forth in section 16.2.3.C, passive "infrequent attendance" (see footnote #8 above) at a religious service that is open to the public (five occasions or less) by a person who is not a member of the organization does not constitute "participation." Because the CHS is being "tasked" to attend a religious service, however, the Special Rule for Religious Services would apply. (See DIOG Section 18.5.1.3.1) In an Assessment, the SAC must approve "tasking" a CHS to attend a religious service. In a Predicated Investigation, SSA approval is required. I) (U//FOUO) Example I: In the course of a Predicated Investigation into whether certain leaders of a mosque are recruiting members to travel to Pakistan to obtain training at Al Qaeda training camps, a CHS is tasked to join the mosque. The CHS is directed not to participate in any private meetings with the Imam or any other officials of the mosque. He is directed only to report on information that is generally known to members of the mosque. (U//FOUO) Analysis I: This is a sensitive UDP because it entails joining a religious organization. Because the CHS has been tasked to join the mosque and report information he learns , review by the CDC and prior approval by the SAC are required. If approved, the field office must notify the SORC within 10 days following this approval. J) (U//FOUO) Example J: Later in the investigation, information is developed that the Imam and other members of the mosque are holding private meetings to discuss raising funds to be remitted to Hamas. The case agent wants to task the CHS to ingratiate himself with these individuals in the hopes that he will be invited to attend those private meetings. (U//FOUO) Analysis J: Because this is a Predicated Investigation, no additional approvals are required in addition to the SAC approval already given. If this were an Assessment and the CHS were being tasked in the same way, review by OGC and approval by the responsible Assistant Director , with notice to the SORC, would be required. K) (U//FOUO) Example K: In the same investigation, the CHS has been asked to join the Board of Directors of the mosque. There is no intent to influence First Amendment rights. If, however, the CHS is a member of the Board of Directors, simply by voting or discussing items on the Board's agenda, it is likely that First Amendment rights will be affected. (U//FOUO) Analysis K: OGC and SORC review and approval by the Director are required. In deciding whether to approve, the Director will consider whether this level of UDP is necessary to meet a significant investigative goal that cannot be achieved without the UDP. L) (U//FOUO) Example L: In the course of a predicated counterintelligence investigation, a UCE portrays herself as a college student. Consistent with her cover, she registers for classes on-line but does not actually attend any classes, take on-line classes, or use an email account affiliated with the college. (U//FOUO) Analysis L: This does not constitute UDP because simply registering for university classes does not constitute participation in the university's activities. If the UCE attends any classes or takes an on-line class, sensitive UDP approvals would need to be obtained. M)(U//FOUO) Example M: A Predicated Investigation is being conducted regarding a recognized and approved university fraternity that is alleged to be involved in drug activity. Version Dated: October 15, 2011 16-18 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §16 An Agent has developed a CHS (not a student), who has become friendly with one of the fraternity members and the member has invited the CHS to come to the fraternity and participate in fraternity activities. The Agent tasks the CHS to participate in the fraternity activities and obtain information about the drug activity at the fraternity. The Agent obtains any necessary OIA approvals. (U//FOUO) Analysis M: This is a sensitive UDP because it involves undisclosed participation in an organization having an academic nexus ( e.g., a student association). Even though the CHS is not a student, he is being tasked to participate in the activities of this organization having an academic nexus. Since the CHS has been tasked to participate in and obtain information about fraternity activities, review by the CDC and prior approval by the SAC are required. If UDP is approved, the field office must notify the SORC within 10 days. 16-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §17 17 (U) OTHERWISEILLEGALACTIVITY(OIA) 17 .1 (U) OVERVIEW (U//FOUO) Otherwise Illegal Activity (OIA) is conduct in the course of duties by an FBI employee (to include an undercover employee (UCE)) or a confidential human source (CHS) which constitutes a crime under local, state, or federal law if engaged in by a person acting without authorization. OIA can be authorized for an FBI employee or CHS to obtain information or evidence necessary for the success of an investigation under the following limited circumstances: (i) when that information or evidence is not reasonably available without participation in the OIA; (ii) when necessary to establish or maintain credibility of cover identity in an undercover or covert investigation; or (iii) when necessary to prevent serious bodily injury or death. Certain types of OIA cannot be authorized, such as participation in conduct that would constitute an unlawful investigative technique (e.g., an illegal wiretap) or participation in an act of violence. In this context, "participation in an act of violence" does not include acts taken in self-defense and defense of others by the FBI employee or CHS because such actions would not be illegal. 17 .2 (U) PURPOSE AND SCOPE (U//FOUO) The use of OIA may be approved in the course of undercover activities or operations that involve an FBI employee or that involve use of a CHS. When approved, OIA should be limited or minimized in scope to only that which is reasonably necessary under the circumstances including the duration and geographic area to which approval applies, if appropriate. 17.3 (U//FOUO) OIAINUNDERCOVERACTIVITY (U//FOUO) General: The use of the undercover method is discussed in the DIOG Section 18.6.13. OIA is often proposed as part of an undercover scenario or in making the initial undercover contacts before the operation is approved. Specific approval for OIA must be obtained in the context of these undercover activities or operations in addition to general approval of the scenario or the operation. (U//FOUO) OIA by an FBI employee in an undercover operation relating to activity in violation of federal criminal law that does not concern a threat to the national security or foreign intelligence: must be approved in conformity with The Attorney General's Guidelines on FBI Undercover Operations (AGG-UCO). Approval of OIA in conformity with the AGG-UCO is sufficient and satisfies any approval requirement that would otherwise apply under the AGGDom. Additional discussion is provided in the Field Guide for FBI Undercover and Sensitive Operations. A Special Agent in Charge (SAC) may approve the OIA described in subsection 17.5. A) (U//FOUO) When a UCE provides goods and service (reasonably unavailable to the subject except as provided by the United States government) that facilitate a felony , or its equivalent under federal, state, or local law, it is a sensitive circumstance. In these sensitive 17-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers10•1 Dated October !5, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §17 circumstances, additional authorization by an Assistant Director is required after review by the Criminal Undercover Operations Review Committee (CUORC). B) (U//FOUO) Participation in otherwise illegal activity that involves a significant risk of violen~e or physical injury requires authorization by the Director, Deputy Director, or designated Executive Assistant Director after review by the CUORC. (U//FOUO) OIA by an FBI employee in an undercover operation (UCO) relating to a threat to the national security or foreign intelligence collection must conform to the AGG-Dom and the FBI's National Security Undercover Operations Policy Implementation Guide (NSUCOPG). The Department of Justice (DOJ) National Security Division (NSD) is the approving component for OIA that requires approval beyond that authorized for SAC approval described in DIOG subsection 17.5, below. However, as authorized by the Assistant Attorney General for NSD, officials in other DOJ components may approve OIA in such investigations. 17.4 (U / /FOUO) OIA BY A CONFIDENTIAL HUMAN SOURCE (CHS) (U//FOUO) OJA by a CHS must be approved in conformity with the AGG-CHS and the FBI CHS PG. 17 .5 (U / /FOUO) APPROVAL OF OIA BY A SPECIAL AGENT IN CHARGE (SAC) - NOT INCLUDINGMATERIAL SUPPORT OF TERRORISM (U//FOUO) An SAC may authorize the following OIA for an FBI employee when consistent with other requirements of this section, the AGG-Dom, the AGG-UCO, and other FBI policy unless otherwise indicated. Except for subsections A, B, and E below, the following OIA activities require CDC review prior to SAC approval, unless otherwise indicated: A) (U//FOUO) Otherwise illegal activity that would not be a felony under federal, state, local, or tribal law; B) (U//FOUO) Consensual monitoring, even if a crime under state, local, or tribal law; 1) (U//FOUO) Consent o(all parties to the communication: For those state, local and tribal governments that require all parties to a conversation to consent to monitoring and do not sanction or provide a law enforcement exception for one-party consent recording of communications with persons within their jurisdiction , prior SAC approval for this OIA is required. This OIA approval authority is delegable to an Assistant Special Agent in Charge (ASAC) or Supervisory Special Agent (SSA). In most situations, the SAC of the employee who is seeking to conduct the consensual monitoring will be the approving official for this OIA. Prior to the SAC authorizing the OIA, one-party consent must be acquired. a) (U//FOUO) The law of the state or territory where the monitoring will take place will govern whether OIA approval is needed . b) (U//FOUO) Consensual monitoring authority and OIA in states that require the consent of all-parties to the communication with no law enforcement exception for FBI employees and non-confidential parties may be authorized for the duration of the investigation , unless specified otherwise, and appropriately documented. As noted in subsection 17.4 above , OIA authority for a CHS can only be approved for 90 day periods, as set forth in the AGG-CHS and the FBI CHSPG. Consensual monitoring OIA for CHS must be renewed every 90 days . Vers10n Dated 0(tober l 5, ?O 11 17-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §17 c) (U//FOUO) See the OGC website for a list of those states that require consent of all parties to the communication and do not have a law enforcement exception. 2) (U//FOUO) FBI employee and non-confidential party (OJA): When consensual monitoring will be conducted by an FBI employee or a non-confidential party where the consent of all parties to the communication is required and there is no law enforcement exception for the FBI, the OIA approval must be obtained from the SAC of the employee who is seeking to conduct the consensual monitoring and documented in a properly executed FD- 759. The FD-759 must be filed in the appropriate ELSUR subfile. This approval authority is delegable to an ASAC or SSA. Such OIA approval may be granted for the duration of the investigation, as long as the consensual monitoring circumstances do not materially change. 3) (U//FOUO) CHS (OJA): When consensual monitoring will be conducted by a CHS in a state or territory where the consent of all parties to the communication is required and there is no law enforcement exception for the FBI, the OIA approval must be obtained from the SAC of the field office where the CHS is handled. This approval authority is delegable to an ASAC or SSA. The initial OIA approval for consensual monitoring must be documented in a properly executed FD-759. Such OIA approval may be granted for a maximum of 90 days, with no additional OIA documentation required for monitoring during that period. If it is necessary to extend the OIA for consensual monitoring beyond the initial 90-day period, another FD-759 may be used or, alternatively, such OIA for consensual monitoring may be requested, approved, and documented with an EC consistent with the AGG-CHS and CHSPG. 4) (U//FOUO) Other approvals for the consensual monitoring may apply such as those required when the consensual monitoring involves a sensitive monitoring circumstance. See DIOG Section 18.6.1.6.3. C) (U//FOUO) The controlled purchase, receipt, delivery, or sale of drugs, stolen property, or other contraband; D) (U//FOUO) The payment of bribes; (U//FOUO) Note: the payment of bribes and the amount of such bribes in a public corruption matter may be limited by other FBI policy (see the Public Corruption PG and Confidential Funding PG); E) (U//FOUO) The making of false representations in concealment of personal identity or the true ownership of a proprietary; and F) (U//FOUO) Conducting a money laundering transaction or transactions involving an aggregate amount not exceeding $1 million. FOU O) The field office should notify the appropriate FBIHQ operational division and OGC _, OIA proposed activity that in the judgment of the approving official may expose .oyees or others to significant personal safety risks, create a risk of civil liability, result in e publicity, or raise any other sensitive operational concern . As a matter of FBI policy, ..;- ent" means that the decision of the authorizing official is discretionary . - -;-0 0) An SAC may not authorize a violation of export control laws or laws that concern liferation of weapons of mass destruction during an investigation relating to a threat to the - ·~L-1 security or foreign intelligence collection. 17-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide § 17 17.6 (U//FOUO) OIA RELATED TO MATERIAL SUPPORT OF TERRORISM IN NATIONAL SECURITY INVESTIGATIONS (U//FOUO) In accordance with Part V.C.3 of the AGG-Dom , the Director of the FBI and the Assistant Attorney General for the NSD of the DOJ established the following policy concerning OIA as it relates to material support of terrorism in national security investigations (see EC dated 01/16/2009, 319W-HQ-A1487699-0GC Serial 35). A) (U//FOUO) If funds , items , or services that will be provided to a subject as part of a national security investigation may constitute material support to terrorism, an FBI, AD, with oral approval from the NSD , DOJ , may authorize the provision of such funds, items, or services if their value does not exceed $2,000 per transaction and $10,000 per operation per year. The preceding sentence applies only if the goods or services are available to the general public and if the AD reasonably believes that the funds, items or services will not be used to pose an imminent significant threat to any individual. B) (U//FOUO) NSD has represented that, except in exceptional circumstances , NSD shall act upon such an oral request within 24 hours and shall, within 72 hours, provide the FBI documentation of the authorization, including any terms and conditions . C) (U//FOUO) Any request and approval must be consistent with the terms and conditions of any license or non-objection agreement provided by the Office of Foreign Assets Control , Department of the Treasury, the Department of State, or the Department of Commerce. D) (U//FOUO) Except in exceptional circumstances, any request for approval of OIA that may constitute material support to terrorism, other than those described in paragraph A, must be made in writing to NSD. (U//FOUO) Any questions about this policy or its implementation should be directed to OGC, National Security Law Branch, Counterterrorism Law Units . 17. 7 (U / /FOUO) STANDARDS FOR REVIEW AND APPROVAL OF OIA (U//FOUO) No official may recommend or approve participation by an FBI employee in OIA unless the participation is justified: A) (U//FOUO) To obtain information or evidence necessary for the success of the investigation and not reasonably available without participation in the otherwise illegal activity; B) (U/ /FOUO) To establish or maintain credibility of a cover identity ; or C) (U//FOUO) To prevent death or serious bodily injury . 17 .8 (U) OIA NOT AUTHORIZED (U//FOUO) The following activities may not be authorized as OIA: A) (U//FOUO) Directing or participating in acts of violence; (U//FOUO) Note : Self-defense and defense of others. FBI employees are authorized to engage in any lawful use of force, including the use of force in self-defense or defense of others in the lawful discharge of their duties. Version Dated: October 15, 2011 17-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §17 B) (U//FOUO) Activities or investigative methods that cannot be authorized because they are prohibited by law, including activities that would violate protected constitutional or federal statutory rights in the absence of a court order or warrant such as illegal wiretaps and searches. For example, approving a non-consensual, non-emergency wiretap without a court order; approving the search of a home without a warrant or an exception to the warrant requirement, etc. 17.9 (U) EMERGENCY SITUATIONS OUO) Without prior approval, an FBI employee may engage in OIA that could be auth orized under this section only if necessary to meet an immediate threat to the safety of perso ns or property or to the national security, or to prevent the compromise of an investigation or the loss of a significant investigative opportunity. In such a situation, prior to engaging in the OIA, every effort should be made by the FBI employee to consult with the SAC, and by the SAC o consult with the United States Attorney's Office (USAO) or appropriate DOJ Division where the authorization of that office or division would be required unless the circumstances preclude uch consultation. Circumstances in which OIA occur pursuant to this paragraph without the authori zation required must be reported as soon as possible to the SAC, and by the SAC to FBIH Q and to the USAO or appropriate DOJ Division. 17-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers.011 Dated: Ue,tober lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18 (U) INVESTIGATIVE METHODS 18.1 18.1.1 (U) OVERVIEW (U) INVESTIGATIVEMETHODS LISTED BY SUB-SECTION NUMBER (U) The following investigative methods are listed by DIOG Sub-Section number: 18.5.1 (U) Public information. 18.5.2 (U) Records or information - FBI and DOJ. 18.5.3 (U) Records or information - Other federal, state, local, tribal, or foreign government agency. 18.5.4 (U) On-line services and resources. 18.5.5 (U) CHS use and recruitment. 18.5.6 (U) Interview or request information from the public or private entities. 18.5.7 (U) Information voluntarily provided by governmental or private entities. 18.5.8 (U) Physical Surveillance (not requiring a court order). 18.5.9 (U) Grand jury subpoenas - for telephone or electronic mail subscriber information only. 18.6.1 (U) Consensual monitoring of communications, including electronic communications. 18.6.2 (U) Intercepting the communications of a computer trespasser. 18.6.3 (U) Closed-circuit television /video surveillance, direction finders, and other monitoring devices. 18.6.4 (U) Administrative subpoenas. 18.6.5 (U) Grandjury subpoenas. 18.6.6 (U) National Security Letters. 18.6.7 (U) FISA Order for business records . 18.6.8 (U) Stored wire and electronic communications and transactional records. 18.6.9 (U) Pen registers and trap/trace devices. 18.6.10 (U) Mail covers. 18.6.11 (U) Polygraph examinations. 18.6.12 (U) Searches - without a warrant or court order. 18-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versio 1 Dated Octobu 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.6.13 (U) Undercover operations. 18.7 .1 (U) Searches - with a warrant or court order. 18.7 .2 (U) Electronic surveillance - Title III. 18.7.3 (U) Electronic surveillance - FISA and FISA Title VII (acquisition of foreign intelligence information). 18.1.2 (U) INVESTIGATIVEMETHODS LISTED BY NAME (ALPHABETIZED) (U) The following investigative methods are listed alphabetized by DIOG name: (U) Administrative subpoenas. (Section 18.6.4) (U) CHS use and recruitment. (Section 18.5 .5) (U) Closed-circuit television/video surveillance, direction finders, and other monitoring devices. (Section 18.6.3) (U) Consensual monitoring of communications, including electronic communications. (Section 18.6.1) (U) Electronic surveillance - FISA and FISA Title VII (acquisition of foreign intelligence information) . (Section 18.7.3) (U) Electronic surveillance -Title III. (Section 18.7.2) (U) FISA Order for business records. (Section 18.6.7) (U) Grand jury subpoenas. (Section 18.6.5) (U) Grand jury subpoenas - for telephone or electronic mail subscriber information only in Type 1 & 2 Assessments . (Section 18.5.9) (U) Information voluntarily provided by governmental or private entities. (Section 18.5.7) (U) Intercepting the communications of a computer trespasser. (Section 18.6.2) (U) Interview or request information from the public or private entities. (Section 18.5.6) (U) Mail covers . (Section 18.6.10) (U) National Security Letters. (Section 18.6.6) (U) On-line services and resources . (Section 18.5.4) (U) Pen registers and trap/trace devices. (Section 18.6.9) (U) Physical Surveillance (not requiring a court order). (Section 18.5.8) (U) Polygraph examinations. (Section 18.6. 11) VErs10n D..ited u,tobcr 1~,.LO11 18-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U) Public information. (Section 18.5.1) (U) Records or information - FBI and DOJ. (Section 18.5.2) (U) Records or information - Other federal, state, local, tribal, or foreign government agency. (Section 18.5.3) (U) Searches - without a warrant or court order. (Section 18.6.12) (U) Searches - with a warrant or court order. (Section 18.7.1) (U) Stored wire and electronic communications and transactional records. (Section 18.6.8) (U) Undercover Operations. (Section 18.6.13) 18.1.3 {U) GENERAL OVERVIEW (U//FOUO) The conduct ofAssessments, Predicated Investigations (Preliminary Investigations and Full Investigations) and other activities authorized by the Attorney General's Guidelines for Domestic FBI Operations (AGG-Dom) may present choices between the use of different investigative methods (formerly investigative "techniques") that are each reasonable and effective based upon the circumstances of the investigation, but that are more or less intrusive, considering such factors as the effect on the privacy and civil liberties of individuals and the potential damage to reputation. The least intrusive method if reasonable based upon the circumstances of the investigation is to be used in such situations. However, the choice of methods is a matter of judgment. The FBI is authorized to use any lawful method consistent with the AGG-Dom, even if intrusive, where the degree of intrusiveness is warranted in light of the seriousness of a criminal or national security threat or the strength of the information indicating its existence, or in light of the importance of the foreign intelligence sought to the United States' interests. (AGG-Dom, Part I.C.2.) (U) The availability of a particular investigative method in a particular investigation may depend upon the level of investigative activity (Assessment, Preliminary Investigation, Full Investigation, and Assistance to Other Agencies). 18.2 (U) LEAST INTRUSIVEMETHOD (U) The AGG-Dom requires that the "least intrusive" means or method be considered and-if reasonable based upon the circumstances of the investigation-used to obtain intelligence or evidence in lieu of more intrusive methods. This principle is also reflected in Executive Order 12333, which governs the activities of the United States intelligence community (USIC). The concept of least intrusive method applies to the collection of intelligence and evidence. (U) Selection of the least intrusive means is a balancing test as to which FBI employees must use common sense and sound judgment to effectively execute their duties while mitigating the potential negative impact on the privacy and civil liberties of all people encompassed within the Assessment or Predicated Investigation, including targets, witnesses, and victims. This principle is not intended to discourage investigators from seeking relevant and necessary intelligence, information, or evidence, but rather is intended to encourage investigators to choose the least 18-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October !.5, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 intrusive -yet still reasonable -means from the available options to obtain the material. Additionally, FBI employees should operate openly and consensually with United States persons (USPERs) to the extent practicable when collecting foreign intelligence that does not concern criminal activities or threats to the national security. (U) DIOG Section 4.4 describes the least intrusive methods concept and the standards to be applied by FBI employees. 18.3 (U) PARTICULARINVESTIGATIVEMETHODS (U//FOUO) All lawful investigative methods may be used in activities under the AGG-Dom as authorized by the AGG-Dom. Lawful investigative methods include those investigative methods contained in this DIOG as well as additional investigative methods and resources authorized in other FBI policy and guidance (for example, future additions to DIOG Sections 18, as well as Policy Implementation Guides). In some instances the authorized investigative methods are subject to special restrictions or review or approval requirements. (AGG-Dom, Part V.A.) 18.3.1 (U) USE OF CRIMINALINVEST/GATIVEMETHODS IN NATIONALSECURITY INVEST/GATIONS (U//FOUO) Because national security investigations may implicate criminal issues as well, the availability of criminal investigative methods should be considered when appropriate. However, any use of criminal investigative methods should be closely coordinated with FBIHQ, both operational units and the NSLB, prior to any anticipated use of this criminal investigative process. The NSLB maintains liaison with DOJ 01 respecting the use ofFISA authorized investigative methods in national security investigations. 18.4 (U) INFORMATIONOR EVIDENCEOBTAINED IN ASSESSMENTSAND PREDICATED INVESTIGATIONS (U) The use, retention and/or dissemination of information obtained during authorized investigations must comply with the AGG-Dom and the DIOG. If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party, and not the FBI, is the originator of the chracterization. -ing the course of an Assessment or Predicated Investigation, FBI employees lawfully t or passively receive items of evidence or intelligence from a variety of sources. demonstrated that the relevance of every item of evidence or intelligence ed i not always apparent at the time it is obtained . Accordingly, FBI !atitude to establish or determine the relevance of information as the "'-· r: dew lop .. revertheless, as a matter of administrative efficiency and - FB employee obtains an item of evidence which clearly is not • e_ i=a·i and there is no foreseeable future evidentiary or FBI o · e C IC. the item should be returned or destroyed ition documented in the file or on the FD- 71 ' 0 ~F CL~L L' E 0 . 'LY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 or Guardian (FD-71a). In the alternative, such item of evidence may be sequestered in the investigative file. If it is later determined that the item of evidence is relevant, the item may be used in the investigation upon such determination. The determination of relevancy will be made on a case-by-case basis with supervisory direction and may include consultation with the appropriate federal prosecuting office and/or the Chief Division Counsel (CDC) or the Office of the General Counsel (OGC). This policy does not supersede Sections 18.6.4.1.5 (Administrative Subpoenas); 18.6.5.1 (Federal Grand Jury Subpoena); 18.6.6.1.7 (National Security Letters); or 18.6.7.1.6 (FISA Order for Business Records), or any requirement imposed by statute, regulation or other applicable law. 18.5 (U) AUTHORIZEDINVESTIGATIVEMETHODS IN ASSESSMENTS (U) See AGG-Dom, Part II.A.4. (U//FOUO) An FBI employee must document on the FD-71 or in Guardian, the use of or the request and approval for the use of authorized investigative methods in Type 1 & 2 Assessments. Certain Type 1 & 2 Assessment situations may require the use of an EC to document the use and approval of certain investigative methods. All authorized investigative methods in Type 3, 4, and 6 Assessments must use an EC to document the use of or the request and approval for the use of the applicable investigative method. See DIOG Section 5.6.3.4 for the investigative methods authorized in a Type 5 Assessment. (U) In conducting an Assessment, only the following investigative methods are authorized: A) (U) Public information. (See Section 18.5.1) B) (U) Records or information - FBI and DOJ. (See Section 18.5.2) C) (U) Records or information - Other federal, state, local, tribal, or foreign government agency. (See Section 18.5.3) D) (U) On-line services and resources. (See Section 18.5.4) E) (U) CHS use and recruitment. (See Section 18.5 .5) ~'/~') ~"tTI\"t~ \)1 i'elJ.'u'e':'>'\)11\tJnnai.10111.rnmtne puo11cor piwa'le entities. t'See 'Section l '8.5.6) G) (U) Information voluntarily provided by governmental or private entities. (See Section 18.5.7) H) (U) Physical Surveillance (not requiring a court order). (See Section 18.5.8) I) (U//FOUO) Grand jury subpoenas - for telephone or electronic mail subscriber information only (during a Type 1 & 2 Assessment) (See Sections 18.5.9 and 18.6.5) (U //FOUO) In Assessments, supervisory approval is required prior to use of the following investigative methods: certain interviews, tasking of a CHS, and physical surveillance not requiring a court order. During Predicated Investigations, supervisory approval requirements for these investigative methods may not apply. 18-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Version Dated: October 15, 2011 18-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.1 §18 (U) INVESTIGATIVEMETHOD: PUBLIC INFORMATION("PUBLICLYAVAILABLE INFORMATION'') (U) See AGG-Dom, Part II.A.4.a and Part VII.L. 18.5.1.1 (U) SCOPE (U//FOUO) Public information is "Publicly Available Information" that is: A) (U) Published or broadcast for public consumption; B) (U) Available on request to the public; C) (U) Accessible on-line or otherwise to the public; D) (U) Available to the public by subscription or purchase; E) (U) Made available at a meeting open to the public; F) (U) Obtained by visiting any place or attending an event that is open to the public (e.g., public places); or G) (U) Observed, heard, smelled, detected or obtained by any casual observer or member of the public and does not involve unconsented intrusion into private places. (U//FOUO) The phrase "observed, heard, smelled, detected or obtained by any casual observer or member of the public" includes, for example, plain view observations; overhearing a conversation taking place at an adjacent table in a public restaurant; odor detection (by a person, drug dog, or technical device) emanating from a vehicle, in a public place, or from locations to which the employee has gained lawful access; searching property that has been intentionally abandoned, including property discarded in public trash containers or common dumpsters (but does not include a "trash cover" as set forth in DIOG Section 18.6.12). (U//FOUO) The following are examples: 1) (U) Viewing the vehicle identification number or personal property that is exposed to public view and may be seen when looking through the window of a car that is parked in an area that is open to and accessible by members of the public; 2) (U) The examination of books and magazines in a book store or the purchase of such items. See Maryland v. Macon, 472 U.S. 463 (1985); and 3) (U) A deliberate overflight in navigable air space to photograph marijuana plants is not a search, despite the landowner's subjective expectation of privacy. See California v. Ciraolo, 476 U.S. 207 (1986). (U//FOUO) Note: Consent Searches are authorized in Assessments, as well as in Predicated Investigations. (U//FOUO) Note: If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party, and not the FBI, is the originator of the characterization. 18-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.5.1.2 (U) APPLICATION (U//FOUO) This investigative method may be used prior to opening an Assessment, in Assessments, Predicated Investigations, foreign intelligence collection investigations, and for assistance to other agencies. 18.5.1.3 (U) APPROVAL (U//FOUO) Supervisory approval is not required for use of this method, except for the special rule for attending a religious service, even if it is open to the public. (See DIOG Section 18.5.1.3.1) 18.5.1.3.1 (U //FOUO) SPECIAL RULES: "SPECIAL RULE FOR RELIGIOUS SERVICES" AND "SPECIAL RULE FOR OTHER SENSITIVE 0RGANIZA TIONS" 18.5.1.3.1.1 (U//FOUO) SPECIAL RULE FOR RELIGIOUS SERVICES- REGARDLESS OF WHETHER IT IS OPEN TO THE GENERAL PUBLIC A) (U//FOUO) In Assessments: Tasking a CHS to attend a religious service requires SAC approval, which cannot be delegated. An FBI employee attending a religious service overtly must have SSA approval. Higher approvals may be required under certain circumstances, such as attendance that rises to the level of UDP (see DIOG Section 16). Undercover activity is not permitted during an Assessment. B) (U//FOUO) In Predicated Investigations: Tasking a CHS to attend a religious service requires SSA approval. An FBI employee attending a religious service overtly must have SSA approval. Higher approvals may be required under certain circumstances, such as attendance that rises to the level of UDP (see DIOG Section 16) or if attendance is part of an undercover operation (see DIOG Section 18.6.13). 18.5.1.3.1.2 (U//FOUO) SPECIAL RULE FOR OTHER SENSITIVE ORGANIZATIONS A) (U//FOUO) In Assessments: Tasking a CHS to attend an event or activity of a sensitive organization as defined in DIOG Section 16.1.3, other than a public gathering that includes substantial numbers of individuals who are not members of the organization (e.g., a public rally; a conference to which the public is invited and is expected to attend), requires SSA approval. Higher approvals may be required under certain circumstances , such as attendance that rises to the level of UDP (see DIOG Section 16). Undercover activity is not permitted during an Assessment. B) (U//FOUO) In Predicated Investigations: No supervisory approval is required. Higher approvals may be required under certain circumstances, such as attendance that rises to the level of UDP (see DIOG Section 16) or if attendance is part of an undercover operation (se DIOG Section 18.6.13). 18.5.1.4 (U) USE/DISSEMINATION (U/ /FOUO) The use or dissemination of information obtained by this method must comp l: with the AGG-Dom and DIOG Section 14. Version Dated: October 15, 2011 18-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.2 §18 (U) INVESTIGATIVEMETHOD: RECORDS OR INFORMATION- FBI AND DEPARTMENT OF]UST/CE (DO]) (U) See AGG-Dom, Part II.A.4.b. 18.5.2.1 (U) SCOPE (U//FOUO) An FBI employee may access and examine FBI and other DOJ records and may obtain information from any FBI personnel or other DOJ personnel. Access to certain FBI records may be restricted to designated FBI personnel because of the sensitive nature of the information in the record, the classification of the record, or the tool used to gather the information contained in the record. These include, but are not limited to: FBI records concerning human source identification; espionage investigations; code word; other compartmented information; records that include raw FISA collections; and Rule 6( e) material. (U//FOUO) Note: If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party, and not the FBI, is the originator of the characterization. 18.5.2.2 (U) APPLICATION (U//FOUO) This investigative method may be used prior to opening an Assessment, in Assessments, Predicated Investigations, foreign intelligence collection investigations, and for assistance to other agencies. 18.5.2.3 (U) APPROVAL (U//FOUO) Supervisory approval is not required to use this method, except that if the use of records constitutes pattern-based data mining under the Federal Data Mining Reporting Act of 2007, it must be reviewed and approved according to Section 18.5.2.4 below. 18.5.2.4 (U) PATTERN-BASED DATA MINING (U//FOUO) As used here, pattern-based data mining (PBDM) means queries or other analysis of electronic databases using two or more search criteria designed to discover or locate a predictive pattern or anomaly indicative of terrorist or criminal activity on the part of any individual or individuals (as defined in Corporate Policy Directive 031 OD). Any such analysis based solely on racial, ethnic, national origin or religious characteristics is strictly prohibited. (U//FOUO) For purposes of this requirement, pattern-based data mining does not include activities using one or more personal identifiers to identify an individual or analysis designed to discover links between a specific subject and unknown individuals or entities, even if the subject's actual identity is not yet known. Pattern-based data mining does not include queries or analysis designed solely to identify potential human sources of intelligence nor does it include activities designed to identify an individual or individuals associated with criminal or terrorist activity that has already occurred. For example, database queries using multiple criteria to identify foreign visitors to the United States of a certain age and gender from 18-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 specific foreign countries who may engage in espionage is pattern-based data mining within the meaning of the statute. In contrast, database queries using criteria such a physical description and motor vehicle owned to identify possible suspects in a kidnapping do not constitute pattern-based data mining, because the queries are being used to investigate a crime that has already occurred. Queries designed to identify individuals or entities who have had contact with a specific individual are not pattern-based data mining; rather, such queries are subject-based data mining, even if the specific individual's actual identity is presently unknown. (U//FOUO) The majority of data analysis performed during FBI Assessments and Predicated Investigations is based on specific individuals or events and therefore does not constitute pattern-based data mining because it is either link analysis or is not predictive of future behavior. (U//FOUO) A Privacy Threshold Analysis (PTA) for pattern-based data mining must be completed and forwarded to the Privacy and Civil Liberties Unit, OGC. See the OGC Privacy PG for additional details. (U//FOUO) The Sensitive Operations Review Committee (SORC) must also receive notice of any proposal to use pattern-based data mining as defined above. Additionally, pursuant to the Federal Agency Data Mining Reporting Act of 2007, 11 the FBI must advise the DOJ of all agency initiatives that involve the use of PBMD, so that those activities may be included in the Department's annual report to Congress. (See CPD 031 OD, "Pattern-based Data Mining Reporting Requirements). 18.5.2.5 (U) USE/DISSEMINATION (U//FOUO) The use or dissemination of information obtained by this method must comply with the AGG-Dom and DIOG Section 14. (U//FOUO) The request for the records and the records received from DOJ and used during Assessment or Predicated Investigation must be maintained as part of the appropriate file (e.g., 801 et. seq classification file, zero sub-assessment file, or investigation file). 11 (U) 42 U.S.C.§ 2000ee-3 Vers10n Dated: October 15, 2011 18-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.3 (U) INVEST/GA §18 TIVE METHOD: RECORDS OR INFORMATION - OTHER FEDERAL, STATE, LOCAL, TRIBAL, OR FOREIGN GOVERNMENT AGENCY (U) See AGG-Dom, Part II.A.4.c. 18.5.3.1 (U) SCOPE (U//FOUO) An FBI employee may access and examine records maintained by, and request information from, other federal, state, local, or tribal, or foreign governmental entities or agencies. When requesting information using this authority, care must be taken to ensure the entity to which the request is made understands that it is not compelled to provide such information or create a new record to assist the FBI. (U//FOUO) Note: If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party, and not the FBI, is the originator of the characterization. 18.5.3.2 (U) 18.5.3.3 (U//FOUO) This investigative method may be used prior to opening an Assessment, in Assessments, Predicated Investigations, foreign intelligence collection investigations, and for assistance to other agencies. (U) Approval APPLICATION (U//FOUO) Supervisory approval is not required to use this method for "routine uses," unless such approval is required by Memoranda of Understanding (MOU) or other agreements for requesting such information. (U//FOUO) Requests to other Federal Agencies: The FBI may request another federal agency to disclose Privacy Act-protected records pursuant to the other agency's "routine uses" (5 U.S.C. § 522a[b][3]) or through a written request for a law enforcement purpose (5 U.S.C. § 522a[b][7]). Such written requests (for a law enforcement purpose) pursuant to 5 U.S.C. § 522a(b )(7) may be made by the Director or his designee, provided that such authority may not be delegated below the Section Chieflevel (28 C.F.R. § 16.40[c]; OMB Guidelines, 40 Fed. Reg. at 28,955). Pursuant to these provisions, the Director hereby delegates his authority to request from federal agencies information and records otherwise protected from disclosure by the Privacy Act, at FBIHQ, to all Section Chiefs and above, and in the field, to all SACs and ADICs. This authority may not be redelegated to a person below the rank of SAC in the field and SC in FBIHQ. (U//FOUO) Requests to Foreign Agencies: Requests for records or information from a foreign government entity or agency must be appropriately coordinated through the applicable FBI Legat office, International Operations Division (IOD), INTERPOL, relevant FBIHQ operational division, and/or DOJ Office of International Affairs, as necessary. Direct contact with foreign government agencies is authorized in certain circumstances, such as an imminent threat situation. 18-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (U//FOUO) If the analysis of records obtained in this manner constitutes PBMD under the Federal Data Mining Reporting Act of 2007, it must be reviewed and approved according to Section 18.5.2.3, above. (U//FOUO) Example: An MOU at a local fusion center or a joint task force may specify procedures for the FBI to follow when requesting records or information from state and local governmental entities or agencies. 18.5.3.4 (U) USE/DISSEMINATION (U//FOUO) The use and/or dissemination of information obtained by this method must comply with the AGG-Dom and DIOG Section 14. (U//FOUO) The request for the records and the records received from an outside entity and used during an Assessment or Predicated Investigation must be maintained as part of the appropriate file (e.g., 801 et. seq classification file, zero sub-assessment file, or investiga tiofile ). Version Dated: October 15, 2011 18-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.4 §18 (U) INVEST/GATIVEMETHOD: ON-LINE SERVICESAND RESOURCES (U) See AGG-Dom, Part II.A.4 .d. 18.5.4.1 (U) SCOPE (U//FOUO) An FBI employee may use any publicly available on-line service or resource including those that the FBI has obtained by subscription or purchase for official use, including services available only to law enforcement entities. (U//FOUO) Note: If the originator of information reported to the FBI characterizes an individual , group , or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party , and not the FBI, is the originator of the characterization . 18.5.4.2 (U) APPLICATION (U//FOUO) This investigative method may be used prior to opening an Assessment, in Assessments, Predicated Investigations , foreign intelligence collection investigations, and for assistance to other agencies. 18.5.4.3 (U) APPROVAL (U//FOUO) Supervisory approval is not required to use this method, although subscribing to or purchasing any new service or resource must be done according to FBI contracting procedures. (U//FOUO) Example : Publicly available on-line services or resources include, but are not limited to: Google , Yahoo, or similar Internet search services. Online resources that may be purchased by the FBI for official use include , but are not limited to: data brokers such as ChoicePoint, Westlaw , and Lexis-Nexis ; and vehicle , casualty , and property insurance claims databases such as Claim-Search . 18.5.4.4 (U) USE/DISSEMINATION (U//FOUO) The use or dissemination of information obtained by this method must comply with the AGG-Dom and DIOG Section 14. (U) See DIOG Appendix L - On-line Investigations for additional information. 18-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Version Dated: October 15, 2011 18-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.5 §18 (U) INVESTIGATIVEMETHOD: CHSUSE AND RECRUITMENT (U) See AGG-Dom, Part II.A.4.e. 18.5.5.1 (U) SCOPE (U//FOUO) The FBI may use and recruit human sources in Assessments and Predicated Investigations in conformity with the AGG-Dom, Attorney General Guidelines Regarding the Use of FBI Confidential Human Sources (AGG-CHS), the FBI Confidential Human Source Program Guide (CHSPG), and the FBI Confidential Human Source Validation Source Manual (CHSVSM). In this context, "use" means obtaining information from, tasking, or otherwise operating such sources. See AGG-Dom, Part VII.V. (U//FOUO) Note: If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party, and not the FBI, is the originator of the characterization. 18.5.5.2 (U) APPLICATION (U//FOUO) This investigative method may be used in Assessments, Predicated Investigations, foreign intelligence collection investigations, and for assistance to other agencies when it is not otherwise prohibited by AGG-Dom, Part III.B .2. (U) When collecting positive foreign intelligence, the FBI must operate openly and consensually with an USPER, to the extent practicable. (U//FOUO) A CHS can be "used" in support of an Assessment and a Predicated Investigation or for the purpose of validating, vetting or determining the suitability of another CHS as part of an Assessment. 18.5.5.3 (U) APPROVALS (U//FOUO) All investigative methods should be evaluated to ensure compliance with the admonition that the FBI should use the least intrusive method if reasonable based upon the circumstances of the investigation. That requirement should be particularly observed during an Assessment when using a CHS because the use of a CHS during an Assessment may be more intrusive than many other investigative methods. Use of a CHS in an Assessment should take place only after considering whether there are effective, less intrusive means available to obtain the desired information. The CHS must comply with all constitutional, statutory, and regulatory restrictions and limitations. In addition: A) (U//FOUO) CHS use and direction must be limited in focus and scope to what is necessary to accomplish the authorized purpose and objective of the Assessment or Predicated Investigation. The FBI employee's tasking of the CHS, to include the focus and scope , must be included in the FBI employee's report contained in DELTA. B) (U//FOUO) During an Assessment, a CHS may be directed to seek information about an individual, group or organization (see the Special Rule for Religious Services and the Special Rule for Other Sensitive Organizations below) only to the extent that such information is 18-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versiol' Dated: October lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 necessary to achieve the specific objective of the Assessment. If such contact reveals information or facts about an individual, group or organization that meets the requirements to open a Predicated Investigation, a Predicated Investigation may be opened, as appropriate. C) (U//FOUO) Special Rule for Religious Services - regardless of whether it is open to the general public: 1) (U//FOUO) In Assessments: Tasking a CHS to attend a religious service requires SAC approval, which cannot be delegated. An FBI employee attending a religious service overtly must have SSA approval. Higher approvals may be required under certain circumstances, such as attendance that rises to the level of UDP (see DIOG Section 16). Undercover activity is not permitted during an Assessment. (U//FOUO) In Predicated Investigations: Tasking a CHS to attend a religious service requires SSA approval. An FBI employee attending a religious service overtly must have SSA approval. Higher approvals may be required under certain circumstances, such as attendance that rises to the level of UDP (see DIOG Section 16) or if attendance is part of an undercover operation (see DIOG Section 18.6.13). D) (U//FOUO) Special Rule for Other Sensitive Organizations: 1) (U//FOUO) In Assessments: Tasking a CHS to attend an event or activity of a sensitive organization as defined in DIOG Section 16.1.3, other than a public gathering that includes substantial numbers of individuals who are not members of the organization (e.g., a public rally; a conference to which the public is invited and is expected to attend), requires SSA approval. Higher approvals may be required under certain circumstances, such as attendance that rises to the level of UDP (see DIOG Section 16). Undercover activity is not permitted during an Assessment. 2) (U//FOUO) In Predicated Investigations: No supervisory approval is required. Higher approvals may be required under certain circumstances, such as attendance that rises to the level of UDP (see DIOG Section 16) or if attendance is part of an undercover operation (see DIOG Section 18.6.13). E) (U//FOUO) Public Information: If the CHS is not tasked to join or participate in the activities of a legitimate organization (which must be approved in accordance with DIOG Section 16), tasking a CHS to find publicly available information or to reveal non-confidential information to which the CHS already has access may be done without supervisory approval in an Assessment or Predicated Investigation. F) (U//FOUO) Non-Public Information: Tasking a CHS to join or actively participate in the activities of a legitimate group or organization, including those in which the CHS is already a member or participating, for the purpose of obtaining information that is not publicly available from or about the organization requires approval as "Undisclosed Participation" (UDP), as discussed in Section 16. During an Assessment, a CHS should not be so tasked unless the information cannot be obtained through less intrusive means and the information is necessary to the Assessment. Furthermore, depending on the nature of the group or organization, such tasking may involve a First Amendment protected activity and trigger higher approval levels. See DIOG Section 16. G) (U//FOUO) A CHS cannot be tasked to do that which an FBI employee cannot legally do. Thus, for example, if a subpoena or court order is required to obtain certain information, such as bank records or credit reports, a CHS cannot be tasked to obtain such information. This principle does not, however, eliminate the legal concept of a consent search or the doctrine of misplaced confidence. The doctrine of misplaced confidence provides that a person assumes Version Dated: October 15, 2011 18-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 the risk when dealing with a third party that the third party might be a government agent and might breach the person's confidence. Thus, by way of example, although the government would be required to have a search warrant to enter a person's premises involuntarily to ascertain whether the premises are being used to facilitate criminal conduct, the FBI is permitted to task a CHS to gain the owner's confidence so that the CHS can enter the premises based on an invitation from the owner to ascertain whether the premises are being so used. H) (U//FOUO) Ifthere is any conflict between the CHSPG, CHSVSM or any other PG and the DIOG, the DIOG controls. OGC, OIC and CPO should be immediately notified of any such conflict. 18.5.5.4 (U) USE/DISSEMINATION (U//FOUO) The use or dissemination of information obtained by this method must comply with the AGG-Dom, DIOG Section 14, and the CHSPG. 18-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated· October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Version Dated Uctoher 15. 2011 18-18 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLA.S,S.lFlED - ~GR G~~lClA.L -US,£ GNL-Y Domestic Investigations and Operations Guide 18.5.6 §18 (U) INVESTIGATIVEMETHOD: INTERVIEWOR REQUEST INFORMATIONFROM THEPUBLIC OR PRIVATE ENTITIES (U) See AGG-Dom, Part II.A.4.f; AGG-Dom, Part II.B.4. 18.5.6.1 (U) SCOPE (U//FOUO) An interview is the questioning of an individual (to include a subject) in order to gather information that is pertinent to and within the scope of an authorized Assessment or Predicated Investigation. The initial questioning of a complainant is not an interview, nor is re-contacting a complainant to clarify information that was initially provided. Normally, an FBI employee should disclose the employee's affiliation with the FBI and true purpose of the interview at the outset. The person being interviewed is voluntarily providing information and his/her Constitutional rights must be respected. FBI employees may not obtain a statement by force, threats , or improper promises. FBI employees have no authority to promise leniency or immunity from prosecution. Additionally, the interviewer should make reasonable efforts to obtain information that is accurate, relevant, timely, and complete. An interview may only elicit a description of how an individual exercises a right guaranteed by the First Amendment to the Constitution if such information is pertinent to and within the scope of an authorized activity; similarly, regardless of how such information is elicited, it may not be maintained in FBI files unless it is pertinent to and within the scope of an authorized activity. (U//FOUO) Nothing in this section prohibits asking for or accepting volunteered access to personal or real property. (U//FOUO) Note: Consent Searches" are authorized in Assessments, as well as in Predicated Investigations. (U//FOUO) Note: If the originator of information reported to the FBI characterizes an individual, group, or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party, and not the FBI, is the originator of the characterization. 18.5.6.2 (U) APPLICATION (U//FOUO) Interviews may be used prior to opening an Assessment, in Assessments, Predicated Investigations, assistance to other agencies, when it is not otherwise prohibited by AGG-Dom, Part III.B.2-3. FBI employees must not use any interview technique that is in violation of the DIOG, the AGG-Dom or is abusive or coercive, regardless of whether a cointerviewer is in compliance with his/her agency's guidelines. 18.5.6.3 (U) VOLUNTARINESS (U//FOUO) Information that is sought during an interview must be provided voluntarily. FBI employees may not obtain a statement by force, threats, or improper promises. FBI employees have no authority to promise leniency or immunity from prosecution. If, during a noncustodial interview, the interviewee indicates he or she wishes to consult an attorney, the interviewer should assess whether continuing the interview would negatively affect the voluntariness of any further information provided. In determining whether a statement has 18-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 been given voluntarily, courts evaluate a "totality of the circumstances," which may include consideration of the following factors: A) (U//FOUO) Whether the interviewee was notified of any charges against him/her or advised of his/her rights; B) (U//FOUO) The interviewee's age, intelligence, experience, and physical condition; C) (U//FOUO) Whether there was any physical abuse or threats of abuse during the interview; D) (U//FOUO) The number of officers present and whether weapons were displayed during the interview; E) (U//FOUO) Whether threats or psychological pressure was used during the interview; F) (U//FOUO) Whether the interviewee was deprived of food, sleep, medication, or outside communication during the interview; G) (U//FOUO) The duration of the interview, and whether any trickery, ruse, or deception was used; and H) (U//FOUO) Whether there were any promises of leniency or other inducements made during the interview. (U//FOUO) See Sections 18.5.6.3.8, 18.5.6.3.9, and 18.5.6.4.13 below for additional considerations when interviewing juveniles. (U/FOUO) These factors are illustrative. The presence of any one or more of the factors mentioned above will not necessarily make a statement involuntary. 18.5.6.4 (U) APPROVAL I PROCEDURES (U) With the exceptions discussed below, interviews do not require supervisory approval. 18.5.6.4.1 {U) CUSTODIALINTERVIEWS (U//FOUO) An FBI employee must advise a person who is in custody of his/her Miranda rights, per form FD-395, before beginning an interview inside the United States with the exception of questioning reasonably prompted by a concern for public safety (discussed below). It is critical that the person understand his/her rights before questioning. By signing the FD-395, the defendant acknowledges that he/she has been advised of his/her rights and i willing to proceed without a lawyer present. (U//FOUO) A person is "in custody" for purposes of Miranda when his/her freedom of movement is significantly restricted. Custody can arise short of formal arrest when, judging from the totality of the circumstances, a reasonable person in the position of the interviewe e would believe that he/she is in custody. A brief, temporary investigative detention is not custody provided it is reasonable in scope. In assessing whether a temporary detention is reasonable in scope and thus not custody for purposes of Miranda, factors to consider incluc~ the degree of force used to affect the detention, use of restraining devices and whether the individual was moved from the location of the stop. Employees can clarify custodial status ·- . telling the person that he/she is not under arrest. Version Dated October 15, 2011 18-20 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.6.4.1.1 §18 (U) MIRANDA WARNINGS REQUIRED (U//FOUO) Miranda warnings are required when a person: A) (U//FOUO) Has been arrested and is in federal, tribal, state, or local custody; B) (U//FOUO) Is significantly restricted in his freedom of movement to a degree normally associated with a formal arrest; or C) (U//FOUO) Regardless of custody, has previously been formally charged, prosecution is pending, and the subject matter of the interview concerns the pending charge. (U//FOUO) For the purposes of Miranda, an interview refers to express questioning and any words or actions that are reasonably likely to elicit an incriminating response. In a custodial interview, the individual must be advised of the names and official identities of the employee(s) conducting the interview, the nature of the inquiry, and provided Miranda warnings, per the FD-395 form, before being interviewed. After being advised of his/her rights, if an interviewee who is in custody, invokes the right to counsel and/or the right to remain silent, this must be honored and the interview must cease. However, once the advice of rights is provided and it is evident that the interviewee understood those rights, the interview may proceed until such time as the interviewee invokes a right. While an affirmative waiver, including signing a waiver portion of the FD-395 is preferred, it is not required. Once the interviewee invokes his/or her right to remain silent and/or right to counsel, the interview must immediately be terminated. The fact that the interviewee invoked the right to counsel and/or the right to remain silent should be recorded on the FD-395 and the form should be executed in all other respects. 18.5.6.4.1.2 (U) MIRANDA WARNINGS NOT REQUIRED (U//FOUO) There are certain custodial interviews in which the protection Miranda provides against self-incrimination may not be served by reading the standard warnings and obtaining a waiver. In the following circumstances, Miranda warnings are not required for custodial interviews: A) (U//FOUO) standard booking questions; B) (U//FOUO) an interview of the incarcerated individual as a victim or witness in an unrelated matter that does not pertain to any pending charges against the interviewee; C) (U//FOUO) the public safety exception (discussed in more detail below); and D) (U//FOUO) in connection with arrests of operational terrorists inside the United States (discussed in more detail below). 18.5.6.4.1.3 (U//FOUO) PUBLIC SAFETY EXCEPTION (U//FOUO) The warning and waiver ofrights is not required when questions are asked that are reasonably prompted by a concern for public safety. For example, if Agents make an arrest in public shortly after the commission of an armed offense, and need to make an immediate inquiry to determine the location of the weapon, such questions may be asked, even of an in-custody suspect, without first advising the suspect of the warnings contained in Form FD-395. This public safety exception could also apply to other 18-21 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October 15,2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 situations where imminent threat( s) to the safety of law enforcement officers or member(s) of the public could be alleviated by questions necessary to neutralize the threat. 18.5.6.4.1.4 (U//FOUO) ADVICE OF RIGHTS IN CONNECTION WITH ARRESTS OF OPERATIONAL TERRORISTS INSIDE THE UNITED STATES 12 (U//FOUO) Identifying and apprehending suspected terrorists , interrogating them to obtain intelligence about terrorist activities and impending terrorist attacks , and lawfully detaining them so that they do not pose a continuing threat to our communities are critical to protecting the American people. The DOJ and the FBI believe that we can maximize our ability to accomplish these objectives by continuing to adhere to FBI policy regarding 13 the use of Miranda warnings for custodial interrogation of operational terrorists who are arrested inside the United States: A) (U//FOUO) If applicable , agents should ask any and all question s that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights . 14 B) (U//FOUO) After all applicable public safety questions have been exhausted , agents should advise the arrestee of his/her Miranda rights and seek a waiver of those rights before any further interrogation occurs , absent the exceptional circumstances described below. C) (U//FOUO) There may be except ional cases in which , although all relevant public safety questions have been asked , agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtainin~ this intelligence outweighs the disadvantages of proceeding with unwarned interrogation . 5 12 (U//FOUO) This guidance applies only to arrestees who have not been indicted and who are not known to be represented by an attorney. For policy concerning the interrogation of indicted defendants, see Section 18.5.6.4.1; and for policy concerning contact with represented persons, see DIOGSection 18.5.6.4.5. 13 (U//FOUO) For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation. 14 (U//FOUO) The Supreme Court held in New York v. Quarles, 467 U.S. 649 (1984), that if law enforcement officials engage in custodial interrogation of an individual that is "reasonably prompted by a concern for the public safety," any statements the individual provides in the course of such interrogation shall not be inadmissible in any criminal proceeding on the basis that the warnings described in Miranda V.Arizona, 384 U.S.436 (1966), were not provided. The Court noted that this exception to the Miranda rule is a narrow one and that "in each case it will be circumscribed by the {public safety} exigency which justifies it." 467 U.S.at 657. 15 (U//FOUO) The Supreme Court has strongly suggested that an arrestee's Fifth Amendment right against self-incrimination is not violated at the time a statement is taken without Miranda warnings, but instead may be violated only if and when the government introduces an unwarned statement in a criminal proceeding against the defendant. See Chavez v. Martinez , 538 U.S. 760 , 769 (2003) (plurality op.); id. at 789 (Kennedy, J., concurring in part and dissenting in part); cf also id. at 778- 79 (Souter , J.,concurring in the judgment) ; See also United States v. Patane, 542 U.S. 630, 641 (2004) (plurality opinion) ("[V]iolations [of the Fifth Amendment right against self-incrimination] occur, if at all, only upon the admission of unwarned statemen ts into evidence at trial."); United States v. Verdugo-Urguidez , 494 U.S. 259 , 264 (1990) ("[A] violation [of the Fifth Amendment right against self-incrimination] occurs only at trial."). Version Dated: October 15, 2011 18-22 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) In these exceptional cases, agents must seek SAC approval, which cannot be delegated, to proceed with an unwarned interrogation after the public safety questioning is concluded. The SAC must consult with FBIHQ (including OGC) and DOJ attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the arrestee has timely waived prompt presentment. (U//FOUO) The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal investigation. Depending on the facts, such interrogation might include , for example, questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might pose an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks . (U//FOUO) As noted above, ifthere is time to consult with FBIHQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the arrestee his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed. 18.5.6.4.2 (U//FOUO) MIRANDA WARNINGS FOR SUSPECTS IN CUSTODY OVERSEAS (U//FOUO) The decision to use or not use Miranda warnings during an overseas custodial interrogation will have to be made on a case by case basis and weigh many factors. Overall, if there is a reasonable likelihood of a prosecution in a U.S. civilian criminal court of the person being interrogated while in custody overseas, agents should discuss with FBIHQ, FBI OGC, and DOJ whether warnings should be provided to the person being interrogated . Once the determination is made to provide Miranda warnings as part of an overseas custodial interrogation, if the person being interrogated invokes his right to remain silent or consult with an attorney, this invocation should be honored. If use of Miranda warnings is appropriate given the circumstances of the case, the following DOJ-approved modified waiver form should be used. The form is the Standard Advice of Right s for Suspects in Foreign Custody. 18.5.6.4.3 (U) CONSTITUTIONAL RIGHTS TO SILENCE AND COUNSEL UNDER MIRANDA A) (U//FOUO) Silence: If a custodial interviewee invokes his/her right to remain silent, FBI employees should not attempt a subsequent interview until a significant period of time has elapsed (a two-hour period has been held to be significant) or the interviewee requests to be interviewed anew. In either case, an FBI employee will ensure that the interviewee is again advised of his/her Miranda rights and indicates that he/she understand those rights before further questioning. If the interviewee again asserts his/her right to remain silent or the right to counsel, questioning must cease at that time. Assertion of the right to silence, like assertion of 18-23 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versio•1 Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 the right to counsel, must be unequivocal and unambiguous. A waiver of the right to remain silent occurs when an interviewee knowingly and voluntarily makes a statement; assertion of the right to remain silent requires more than mere silence in the face of questioning. This right, like the right to counsel, can be invoked at any time during custodial interrogation. Agents may continue questioning someone who has not clearly invoked his/her right to remain silent , but if the custodial interviewee asserts his/her right to silence, questioning must cease at that time. B) (U//FOUO) Counsel: If a custodial interviewee invokes his/her right to counsel, questioning must cease. FBI employees may not attempt a subsequent interview unless counsel is present , the custodial interviewee initiates contact, or there has been a break in custody of at least 14 days. 1) (U//FOUO) When a custodial interviewee who has invoked his/her right to counsel initiates a subsequent interview, an FBI employee must ensure that the interviewee is advised of and understands his/her Miranda rights before proceeding with the interview. Not every statement by a custodial interviewee can fairly be interpreted as initiating a subsequent interview. In order to constitute the initiation of an interview, the custodial interviewee must either directly request such or use words that are reasonably interpreted as expressing a desire to be interviewed. If the words used are ambiguous, the FBI employee should clarify the custodial interviewee ' s intent by asking directly whether the custodial interviewee wants to be interviewed. The words and responses , if any, to such clarifying questions should be documented. General conversation by a custodial interviewee cannot be interpreted as indicating a desire to be interviewed and cannot be used standing alone to predicate a second interview after the right to counsel has been invoked. If the interviewee again asserts his/her right to counsel, or invokes his/her right to silence, questioning must cease at that time. 2) (U//FOUO) When an uncharged and/or unrepresented interviewee who has previously invoked his/her right to counsel experiences a break-in-custody of at least 14 days , he/she may be approached for a subsequent interview. FBI employees, however, must ensure that the custodial interviewee is again advised of and waives his/her Miranda rights before proceeding with the interview. A break-in-custody for these purposes can occur even if an interviewee is continuously incarcerated. Questions as to what constitutes a break-incustody should be directed to the CDC or OGC. 3) (U//FOUO) Contact with a represented person outside the presence of his/her counsel may implicate state ethics rules for attorneys (AUSAs). Before making such contact, employees are encouraged to contact the CDC , OGC , or the USAO . Once a represented person has been charged , information may only be elicited from the person: 1) regarding an unrelated or uncharged matter or 2) when counsel is present. Questions as to whether an individual is in fact represented or may be questioned as to a particular matter should be directed to the CDC orOGC. 18.5.6.4.4 [U) SIXTH AMENDMENT RIGHT TO COUNSEL (U//FOUO) The Sixth Amendment Right to Counsel requires the government to advise and obtain a waiver of the Right to Counsel prior to interviewing the person to whom the right has attached. The Right to Counsel attaches upon indictment regardless of whether the indicted person realizes an indictment has been returned. The Right to Counsel also attaches upon the filing of information and at the time of an initial appearance on a Federal Complaint. The Right to Counsel is offense specific. When applicable, a warning regarding the Right to Version Dated· October 15, 2011 18-24 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 Counsel and subsequent knowing and voluntary waiver must occur prior to an interview, regardless of whether the person is in custody. Providing a person with a Miranda warning and obtaining a waiver per the use of Form FD-395 will permit the interview of the person after the Right to Counsel has attached. The Sixth Amendment right to counsel does not prohibit the government from re-contacting the subject if the subject refuses initially to waive this right or otherwise has requested or obtained counsel following an Initial Appearance. However, further attempts to interview the subject may be prohibited if the subject invoked his right to counsel and remained in continuous custody or there was an insufficient break in custody (consistent with Miranda and its progeny). In addition, due to concerns associated with contact with represented persons (See 18.5.6.4.5), guidance from the CDC or OGC should be obtained before contact is made with a subject who has obtained or requested counsel if the contact relates to the crime charged and the subject's counsel has not been notified. 18.5.6.4.5 (U) CONTACT WITH REPRESENTED PERSONS (U//FOUO) CDC or OGC review is required before contact with represented persons in the absence of prior notice to counsel. Such contact may implicate legal restrictions and affect the admissibility of resulting evidence. Hence, if an individual is known to be represented by counsel in a particular matter, the CDC must follow applicable law and DOJ procedure when reviewing the request to contact the represented individual in the absence of prior notice to counsel. The SAC, CDC, or their designees, and the United States Attorney or his or her designees must consult periodically on applicable law and DOJ procedure relative to contact with represented persons. The field office may raise inconsistent application of: (i) state ethics rules; or (ii) rules for contacts with represented persons with the USAO and request that it consult with the DOJ Professional Responsibility Advisory Office. (AGG-Dom, Part V.B.1) 18.5.6.4.6 (U) MEMBERS OF THE UNITED STATES CONGRESS AND THEIR STAFFS (U//FOUO) Generally, FBI employees may accept information offered from Congressional offices just as they would accept information from other sources, and they may act upon it accordingly. SAC and appropriate FBIHQ AD approval, and prior notice to the AD Office of Congressional Affairs (OCA), are required if an employee seeks to: (i) establish an informant relationship with a Member of Congress or with Congressional staff; (ii) interview a Member of Congress or Congressional staff in connection with a public corruption matter; or (iii) interview a Member of Congress or Congressional staff in connection with a foreign counterintelligence matter. The FBIHQ operational division policy implementation guides (PGs) may contain additional notice requirements. 18.5.6.4.7 (U) WHITE HOUSE PERSONNEL (U//FOUO) FBI employees may accept information offered by White House personnel just as they would accept information from other sources, and they may act upon it accordingly. SAC and appropriate FBIHQ AD approval, after consultation with OGC, is, however, required before initiating contact with White House personnel as part of an investigation. SAC and AD approval (from the appropriate operational division), after consultation with OGC, is also required if an employee seeks to establish an informant relationship with any member of the 18-25 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October!~. 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 White House staff. Additional guidance regarding contact with White House personnel may be found in the AG Memorandum captioned "Communications with White House and Congress" dated May 11, 2009. (See DIOG Appendix D) Note: The FBIHQ operational division PGs may contain additional notice requirements for conducting interviews or seeking an informant relationship with White House personnel. In addition personnel assigned to the Washington Field Office may, after OGC approval, obtain authority to contact White House personnel on routine investigations where White House personnel may have been a victim or witness. 18.5.6.4.8 (U) MEMBERS 18.5.6.4.8.1 18. 5. 6.4. 8.1.1 OF THE NEWS MEDIA (U) APPROVAL REQUIREMENTS (U) GENERAL REQUIREMENTS (U//FOUO) Attorney General approval must be obtained prior to conducting an interview of a member of the news media for any offense which the member of the news media is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his/her official duties as a member of the news media. Requests for this approval must be submitted with an EC to the AD of the operational FBIHQ division that is responsible for the investigative classification and the AD of the Office of Public Affairs (OP A). The requesting EC must be reviewed by the CDC and approved by the SAC after coordinating the request with the local USAO. The EC must contain the necessary facts and investigative justification for the interview consistent with the DOJ guidelines set forth in 28 C.F.R. § 50.10. 18. 5. 6.4. 8.1.2 (U) EMERGENCY CIRCUMSTANCES REQUIREMENTS (U//FOUO) In emergency circumstances , an Agent may interview a news media representative concerning an offense which the member of the news media is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story , or while engaged in the performance of his/her official duties as a member of the news media without prior AG approval , if authorized by the SAC and the United States Attorney . Immediate notification of the interview , the emergency circumstances that justified proceeding without prior authorization and all the information that would have been provided if prior authorization had been sought shall be communicated immediately to the AD of the FBIHQ operational division, the AD of the OPA , and the General Counsel. The AD of the operational division is responsible for notifying the appropriate officials at DOJ as set forth in 28 C.F.R. 50.10. After these oral notification s have been made , the field office is responsible for providing written documentation to the FBIHQ operational division AD as soon as practicable , but not more than 24 hours after the interview. FBIHQ is responsible for providing appropriate written documentation to the DOJ approval authorities to whom oral notice was given. Version Dated; October 15, 2011 18-26 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.6.4.8.2 §18 (U) USE OF SUBTERFUGE (U//FOUO) To the extent operational needs allow, investigators must operate openly and consensually with members of the news media. If an interview of a member of the news media involves any subterfuge (whether the purpose of the interview is related to the news gathering circumstances set forth in the preceding paragraph or otherwise) , the interview and the subterfuge must be approved by the AD of the operational division responsible for the investigation. The EC requesting permission must include the facts and circumstances surrounding the interview, including an explanation why the investigator cannot operate openly and consensually with the news media person to be interviewed. Additionally, the EC must include a description of the planned subterfuge. After consultation with the OP A and OGC, the AD of the operational division must decide whether to approve the request. If the request requires approval by DOI (because the interview is related to an offense committed by the member of the news media during the course of news gathering) the AD of the operational division is responsible for submitting all requests for approval to the DOI per 28 C.F.R. 50.10. (U//FOUO) FBIHQ operational division PGs may contain additional notice requirements. 18.5.6.4.9 (U) DURING AN ASSESSMENT - REQUESTING INFORMATION WITHOUT REVEALING FBI AFFILIATION OR THE TRUE PURPOSE OF A REQUEST A) (U//FOUO) In the normal course of an interview, an FBI employee should divulge the employee's affiliation with the FBI and the true purpose of the interview. FBI employees must operate openly and consensually with members of the public during an Assessment unless operational considerations preclude the disclosure of true affiliation or purpose , in which case , employees must adhere to the policies listed below. B) (U//FOUO) During an Assessment, an FBI employee may request information without disclosing the true purpose of the request provided that the false purpose would not reasonably be expected to violate the rights or damage the reputation of another person and provided the false purpose does not imply that adverse legal consequences may follow if the interviewee declines to speak to the FBI employee. C) (U//FOUO) Undercover activity is not authorized during an Assessment. "Undercover activity" includes the use of false identity to obtain intelligence or evidence from a subject or other person of interest. D) (U//FOUO) An FBI employee is not required to affirmatively disclose his or her FBI affiliation if non-disclosure is reasonably necessary to achieve the purpose of the Assessment and the FBI employee is: 1) (U//FOUO) Attending a public event or place (including presence in publicly accessible on-line space or venue) on the same terms as a member of the general public ; 2) (U//FOUO) Present at a public event or place (including a publicly accessible on-line space or venue) and the employee is invited to engage in a limited follow-on conversation with a third party outside of the public event or place (or online space or venue) ; 3) (U//FOUO) Engaged in incidental contact or interaction with members of the public or private entities; 4) (U//FOUO) Engaged in limited interaction to protect cover; 18-27 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version DJted. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 5) (U//FOUO) Tacitly representing him or herself as an associate of another law enforcement officer; 6) (U//FOUO) Engaged in a properly authorized Type 5 Assessment; or 7) (U//FOUO) Engaged in limited interaction with a third party. (U//FOUO) For each circumstance above, an employee's FBI affiliation should only be withheld if doing so is not reasonably expected to adversely affect the rights or damage the reputation of another person or to have reasonably anticipated legal consequence. (U//FOUO) In a Type 5 Assessment to vet a potential source, alias/false identity documentation (AFID) may be used for the limited purpose of vetting a potential source if done in accordance with the CHSPG. AFID may not be used with the intent to collect, or with the expectation of collecting, intelligence or evidence through conversations with a subject or other person of interest-as this activity may constitute undercover activity. (U//FOUO) The authority to withhold disclosure of FBI affiliation does not extend to an interview seeking intelligence or evidence material to an Assessment. Conducting an interview without disclosing FBI affiliation may constitute undercover activity, which is prohibited in an Assessment. If FBI affiliation has been withheld and intelligence or evidence has been revealed unexpectedly, the FBI employee may continue to receive information voluntarily provided by the other party. The FBI employee must document and report the circumstances to a supervisor at the earliest opportunity. 18.5.6.4.10 [U) CONSULTATION AND DISCUSS/ON (U//FOUO) The authorities granted above to engage members of the public without disclosing the true purpose of the request and to engage in limited interaction with the public without affirmatively disclosing FBI affiliation are intended to provide an effective, efficient, and timely means to resolve Assessments. At the same time, this policy is designed to prevent inadvertent noncompliance with the prohibition on undercover activity during an Assessment by, for example, using a false identity (including Alias False Identification (AFID)) to conduct an interview seeking intelligence or evidence during an Assessment. There will not always be a bright line between undercover activity and authorized interaction with the public in some operational scenarios. FBI employees are strongly encouraged to consult with the CDC or OGC when questions arise regarding use of this section. During an Assessment, if there is any doubt about whether the plan constitutes undercover activity, the FBI should not proceed with the plan. 18.5.6.4.11 [U) EXAMPLES 18.5.6.4.11.1 (U) EXAMPLE 1 (U//FOUO) During an Assessment, for the purpose of conducting limited surveillance, an agent attends a motorcycle rally open to the public without disclosing his FBI affiliation. On arrival, the agent is asked to show some ID and sign in. May the agent produce a false driver's license and sign in under an alias? Ve, SHH, le tE ct: Octa Je' 1 ; 2( ' l 18-28 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) Answer: Yes, this limited interaction and use of AFID is permitted in this circumstance to protect the agent's cover. 18.5.6.4.11.2 (U) EXAMPLE 2 (U//FOUO) During an Assessment, an agent seeks to learn whether a particular individual still resides in a particular dangerous neighborhood. She plans to wear a UPS shirt and carry a clipboard into an apartment building and knock on some doors asking if the individual has moved from the building. May the agent proceed in this manner? (U//FOUO) Answer: Yes, this constitutes engaging in limited interaction with a third party. Although the agent intends to have contact with members of the public, her interaction is limited and not designed to obtain information regarding the third party. 18.5.6.4.11.3 (U) EXAMPLE 3 (U//FOUO) During an Assessment, an agent surveilling a subject follows the subject into an office building. The building security requires everyone entering to sign in but does not check ID. The surveillance agent is asked to sign a register, does so using a false name, and continues the surveillance. May the agent do this? (U//FOUO) Answer: Yes, this is a good example of engaging in incidental contact to protect cover. It could also be considered incidental contact or interaction with members of the public or private entities. 18.5.6.4.11.4 (U) EXAMPLE 4 (U//FOUO) During an Assessment, an agent is seeking to determine the whereabouts of John Doe. The agent discloses his identity to one of Mr. Doe's neighbors and falsely tells the neighbor that he has reports that Doe was front and center in a crowd during which several foreign students were pelted with eggs and chided to leave the university campus because they were occupying seats that should go to taxpayers. The agent implies to the neighbor that it is very important to be able to establish that Doe was not, in fact, in the crowd. May the agent use this false statement of purpose? (U//FOUO) Answer: No , this would damage the reputation of Doe in the neighborhood because it implies Doe was involved in criminal conduct. 18.5.6.4.11.5 (U) EXAMPLE 5 (U//FOUO) During a Type 5 Assessment, an agent calls a foreign student and tells the student she would like to discuss information contained on his visa. In fact, there is nothing about the student's visa of interest to the FBI; the agent's true purpose is to meet the student to assess him as a potential source. May the agent use that false statement of purpose in order to induce the student to meet and be interviewed? (U//FOUO) Answer: Yes, the false purpose is permissible because it does not imply that legal consequences may follow if the student declines to speak to the agent. It would, however, not be permissible for the agent to tell the student that he has a serious visa 18-29 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated· Octobu 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 problem and could face deportation if he does not agree to meet with the agent , because that false purpose implies that adverse legal consequence will flow to the student if he declines to speak to the agent. 18.5.6.4.11.6 (U) EXAMPLE 6 (U//FOUO) The Joint Terrorism Task Force (JTTF) receives a Guardian lead stating that an employee of the East Side convenience store is a terrorist and that he has gone to Pakistan for terrorist training . The Guardian lead does not identify the alleged terrorist other than stating he works at the store . To resolve the lead, the agent first wants to determine who works at the store to see if the FBI has any intelligence that confirms or negates the lead . The agent conducts public records searches for the business. These are of limited value as they only provide the name of the owner of the business . Because the business is open 24 hours a day, there must be at least one additional employee. In order to resolve this possible threat quickly , the agent and a local police detective assigned to the JTTF obtain a photograph of a particularly disreputable looking task force officer to use in a ruse to determine who works at the business and whether anyone who works there has gone to Pakistan. The task force officer and the agent go to the business. The police officer identifies himself as a detective with the local police department and says that the agent is his partner. He explains to the man at the counter that there have been several robberies of local convenience stores oflate (true on any given day) and that he would like the employee to look at the picture to see if he recognizes the person it depicts. The employee does not. Then, the task force officer asks for the name of other employees ostensibly so that he can also show them the picture . Can the agent proceed in this manner? (U//FOUO) Answer: Yes, this a limited interaction with a third party who is not a subject or a person of interest and the agent is tacitly allowing himself to be held out as an associate of another law enforcement officer. 18.5.6.4.11.7 (U) EXAMPLE 7 (U//FOUO) An FBI agent accompanies a DHS Immigration and Customs Enforcement (ICE) agent task force member to check out an individual who has been detained incident to the individual ' s arrival into the United States at a border crossing . The individual is not known to be a subject in any ongoing investigation but acted in an unusual manner when asked at the border crossing about his country of origin. For operational reasons , the FBI agent does not wish to be identified as an FBI agent but instead will be introduced as the ICE agent's partner , falsely implying that she is also an ICE agent. May the FBI agent proceed to the immigration interview and allow the ICE agent to suggest that the FBI agent is an ICE agent? (U//FOUO) Answer: Yes, the agent can tacitly represent hersel f to be associated with another law enforcement agency and may be present during the ICE interview . The agent may not, however , conduct the interview because doing so in a false affiliation capacity would be considered an "undercover activity ." Version Dated: October 15, 2011 18-30 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.6.4.11.8 §18 (U) EXAMPLE 8 (U//FOUO) Continuing with these facts, shortly after arrival, during the visit an opportunity arises for an interview regarding smuggling of counterfeit cigarettes. The FBI agent is asked for her identification by the interviewee. May the agent respond by stating she is an ICE agent or by producing a false credential identifying her as such? (U//FOUO) Answer: No , because this will be an interview that seeks intelligence or evidence . During an Assessment, the agent may not conduct an interview under an assumed identity as an ICE agent. She must either leave the interview or correctly identify herself as an FBI agent. 18.5.6.4.11.9 (U) EXAMPLE 9 (U//FOUO) As part of an authorized Assessment conducted online, an FBI employee visits a public chat forum using an Internet name that does not disclose FBI affiliation . The FBI employee engages an individual in discussion about another private forum where identity theft is discussed . This other forum is password protected and requires invitation from someone who is already a participant. The individual invites the FBI employee to access the forum and provides a password. May the FBI employee pursue the discussion in the private chat forum. (U//FOUO) Answer: Yes, the FBI employee may engage in limited interaction outside the public forum based on an express invitation from someone who has access so long as there are no special rules apparent in releasing the password . Although limited interaction in a context like this is permissible, FBI employees must be very careful in such a scenario not to engage in undercover activity, which is not permitted during an Assessment. 18.5.6.4.12 (U//FOUO)PREDICATED INVESTIGATIONS- REQUESTING INFORMATION WITHOUT REVEALING FBI AFFILIATION OR THE TRUE PURPOSE OF A REQUEST (U//FOUO) In the normal course of an interview, the FBI employee should divulge the employee's affiliation with the FBI and the true purpose of the interview. During a Predicated Investigation , however, an FBI employee may request information without revealing FBI affiliation or disclosing the true purpose of the request provided the false reason would not reasonably be expected to violate the rights or damage the reputation of another person or have reasonably anticipated legal consequence. (U//FOUO) Withholding FBI affiliation may constitute undercover activity , e.g., when an employee uses an assumed identity to obtain intelligence or evidence from a subject or other person of interest. Undercover activity must comply with the guidelines contained in DIOG Section 18.6.13 and the AGG-UCO. 18.5.6.4.13 (U) INTERVIEWS OFJUVENILES (U//FOUO) When determining whether to interview a juvenile (anyone under the age of eighteen) who does not fall within the provisions of the JDA above, e.g., when interviewing a 18-31 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 juvenile as a witness or subject prior to arrest, and, if so, determining the scope and tactics that will be used, the FBI employee should consider the age and competency of the juvenile, whether the juvenile is emancipated, the juvenile's relationship to the suspect(s), safety concerns, the gravity of the offense at issue, any alternative sources of evidence, the importance of the information or potential testimony to the investigation, and the juvenile's degree of involvement, if any, with the offense. If the interview is custodial, compliance with the provisions of the Juvenile Delinquency Act (JDA) below is necessary. In determining whether a juvenile is in custody the test remains an objective test -was there a formal arrest or a deprivation of freedom of movement equivalent to an arrest. However, with respect to juveniles, if the juvenile's age is known to the interviewer or is objectively apparent, the juvenile's age is to be considered in the custody analysis. This is not to say that age is the determining or decisive factor in every case, but it recognizes that age is to be considered given a reasonable adult may view the circumstances surrounding the interview differently than a reasonable juvenile. If the juvenile is placed under arrest, the procedures listed in 18.5 .6.4.14 must be followed. If not under arrest, but based on the objective circumstances surrounding the interview, including the juvenile's age, the juvenile is deemed to be in custody, the interviewer should advise the juvenile of their rights as set forth in the FD-395 and cease the interview if the juvenile invokes a right. Parental consent for a juvenile interview should be obtained when feasible under the circumstances of the investigation. A) (U//FOUO) Special consideration should be given to child interviews and to interviews of juveniles who are of a tender age, maturity, or have a significant developmental disability. To the extent appropriate, agents should make use of local child protective services to aid in interviewing a child -- especially for an offense involving sexual exploitation of the child. The agents should consider seeking approval to video and/or audio record child interviews to address potential allegations that the child was manipulated and to have an unimpeachable record in case the child's statement changes. B) U//FOUO) Federal statutes and the Attorney General Guidelines on Victim and Witness Assistance require federal investigators to utilize sensitive and developmentally appropriate practices designed to elicit the most accurate information from child victims and witnesses and to reduce unnecessary and additional trauma to these children. An interview should be appropriate for the age and developmental level of the child. It may be advisable in some instances for FBI employees to seek assistance with interviewing children - possibly by utilizing local child protective services - particularly, when the child is very young, developmentally disabled, or extremely traumatized. Interviews of child victims and witnesses, regardless of the type of crime, should be conducted by personnel properly trained in the techniques designed to best elicit accurate information from a child while minimizing additional trauma. 18.5 .6.4.14 (U) INTERVIEWSOF] UVENILESAFTERARREST (U//FOUO) Under the Juvenile Delinquency Act (JDA), a juvenile is anyone who commits a federal crime before his or her eighteenth birthday and who has not yet reached age twentyone (21) before being charged. The provisions of the JDA, 18 U.S.C. § 5031 et~ . apply upon arrest. A) (U//FOUO) Whenever a juvenile is arrested for a violation offederal law, he/she must be immediately advised of his/her legal rights and the United States Attorney must be notified. The juvenile's parents, guardian or custodian must also be immediately notified of his/her Version Dated: October 15, 2011 18-32 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 arrest as well as his/her rights and the nature of the alleged offense. After notification has been made, FBI employees must allow a parent, guardian, or custodian access to the juvenile if requested by the juvenile or by a parent, guardian or custodian of the juvenile . The juvenile must be promptly taken before a magistrate if a magistrate is available. If no magistrate is immediately available, the juvenile must be taken to a magistrate without undue delay. B) (U//FOUO) Whether a juvenile may be interviewed for a confession or admission of his own guilt between the time of his arrest for a federal offense and his initial appearance before the magistrate depends on the law of the circuit in which the arrest occurs. If the interrogation is not allowed under the law of the circuit, information volunteered by the arrested juvenile concerning his own guilt should be recorded in the FBI employee's notes for use in subsequent proceedings; clarifying questions may be asked as necessary to make certain the FBI employee correctly understands what the juvenile intends to say. The volunteered statement may be reduced to writing if such action does not involve any delay in the juvenile's appearance before the magistrate. Any questions concerning the Jaw that applies in the particular circuit should be directed to the CDC. C) (U//FOUO) A juvenile may be questioned concerning the guilt of a third party if such questioning does not cause any delay in bringing him/her before the magistrate . D) (U//FOUO) These special requirements apply only after the arrest of a juvenile , as defined by federal law, for a federal offense. They do not apply when the juvenile is under arrest by state or local officers on a state or local charge but is suspected of having committed a federal offense. FBI employees may question a juvenile in custody on a non-federal charge about a federal offense for which he/she is a suspect. FBI employees are cautioned, however , that they may not collude or create the appearance of collusion with non-federal officers to delay an arrest on federal charges to circumvent the JDA requirements. E) (U//FOUO) A juvenile may waive his Fifth Amendment rights and consent to a post-arrest custodial interview if permitted by the law of the circuit. Whether a waiver is knowing and voluntary will be determined based on the totality of the circumstances surrounding the interview. Among the factors the court will likely consider are the juvenile ' s age, experience, education, background, and intelligence, and whether he/she has the capacity to understand the warnings given , the nature of Fifth Amendment rights, and the consequences of waiving them. The presence and co-signature of a parent or guardian during the waiver of rights (FD-395) is not required for a voluntary waiver, although it is a factor to be considered and might help dispel any notion that the juvenile was coerced. The AUSA must approve a post-arrest custodial interview of a juvenile. 18.5.6.4.15 (U) DO CUMENTATION (U//FOUO) When it is anticipated that the results of an interview may become the subject of court testimony, the interview must be recorded on an FD-302 or FD-1023 (for debriefing of CHSs ). The FD-302 or FD-1023 must contain a record of statements made by the interviewee. Analysis or contextual comments regarding an interviewee's statements should be documented in a companion EC or other appropriate format. If the interviewee characterizes an individual, group, or activity in a certain way, FBI records (i.e ., 302s , ECs , LHMs) should reflect that the interviewee, not the FBI, is the source of the characterization. (U//FOUO) Certain types of written material developed during the course of an interview must be retained including: 18-33 UNCLASSIFIED - FOR OFFICIAL USE ONLY V,•n;1op T),lted: Octo.wr l, ,W:!.1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 A) (U//FOUO) Written statements signed by the witness. When possible, written statements should be taken in all investigations in which a confession or admission of guilt is obtained unless the confession is obtained during an electronically-recorded interview session. If a witness gives a signed statement, and then gives additional information orally, both the signed statement and the oral information should be recorded on an FD-302 or FD-1023; B) (U//FOUO) Written statements, unsigned by the witness, but approved or adopted in any manner by the witness. An example of such a written statement would be a written statement that the subject orally admits is true but will not sign; and C) (U//FOUO) Original notes of an interview when the results may become the subject of court testimony. Materials generated via email, text messages, or similar means during an online interview must be retained as original notes. Because some forms of synchronous communication tools, such as text messaging, have limited or no storage, print, or production capabilities, they should not be used for substantive communications with law enforcement colleagues or civilians who may become witnesses. If these tools are, nonetheless, used for substantive communications as part of an interview, the communications must be memorialized verbatim in an FD-302. D) (U//FOUO) If an FBI employee and an AUSA conduct an interview, and the AUSA asks or tells the FBI employee to refrain from recording the substance of the interview or taking notes, the FBI employee should decline to participate in the interview and should not be present when it takes place unless the interview is part of the trial preparation of the witness (or unless another law enforcement agent present is given the responsibility for taking notes and documenting the substance of the interview). FBI employees generally do not report the substance of trial preparation unless new material information or impeachment information is developed. FBI employees should consult with the trial AUSA to determine how to document any new information, including impeaching information, developed during the trial preparation interviews. 18.5.6.4.16 (U) ELECTRONICRECORDINGOFINTERVIEWS (U//FOUO) Special Agents must obtain ASAC approval (which may not be delegated) prior to recording interviews. The requirement to obtain approval is not intended to discourage recording or to indicate that the FBI disfavors recording. Indeed, there are many circumstances in which audio or video recording of an interview may be prudent. Approval to electronically record an interview must be documented on a FD-759. When recording a custodial interview, the recording should include an advice and waiver of Miranda rights, as well as a question and answer segment designed to demonstrate that the interviewee's statements are voluntary and not the product of coercion. (U//FOUO) After completing the recorded interview, the agent must document the fact that the interview took place in an FD-302, noting the identity of the individual recorded and the details of the recording session (e.g., date, time, start and stop periods, reasons for stopping ). FBI employees may include a summary of the recording in the FD-302 if doing so will aid them in the management of the investigation. Transcription of the recording is optional. (U//FOUO) Establishing within a field office reasonable standards for the types of investigations, crimes, circumstances, and subjects for which recording may be desirable will help maintain internal consistency. The following factors will assist the ASAC in determin in; whether to approve a request to record interview or interviews. These factors should not be Vrr~ion Dated October:S LOL 18-34 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 viewed as a checklist; they are not intended to limit the discretion of the approving official and are not intended to suggest that there is a presumption against recording. A) (U//FOUO) Whether the purpose of the interview is to gather evidence for prosecution, or intelligence for analysis, or both; B) (U//FOUO) If prosecution is anticipated, the type and seriousness of the crime, including, in particular , whether the crime has a mental element (such as knowledge or intent to defraud), proof of which would be considerably aided by the defendant's admissions in his own words; C) (U//FOUO) Whether the defendant's own words and appearance (in video recordings) would help rebut any doubt about the voluntariness of his confession raised by his age, mental state, educational level, or understanding of the English language; or is otherwise expected to be an issue at trial, such as to rebut an insanity defense; or may be of value to behavioral analysts; D) (U//FOUO) If investigators anticipate that the subject might be untruthful during an interview, whether a recording of the false statement would enhance the likelihood of charging and convicting the person for making a false statement; E) (U//FOUO) The sufficiency of other available evidence to prove the charge beyond a reasonable doubt; F) (U//FOUO) The preference of the USAO and the Federal District Court regarding recorded confessions; G) (U//FOUO) Local Jaws and practice--particularly in task force investigations where state prosecution is possible; H) (U//FOUO) Whether interviews with other subjects in the same or related investigations have been electronically recorded; and I) (U//FOUO) The potential to use the subject as a cooperating witness and the value of using his own words to elicit his cooperation. 18.5.6.4.17 (U) INTERVIEWS RELATING TO CLOSED FILES (U/ /FOUO) An interview initiated by an employee should only be conducted if it is within the scope of an open authorized Assessment or Predicated Investigation. On the other hand, there are situations in which an individual contacts the FBI to report information concerning a matter that has been closed or placed in a zero file classification, or is unrelated to any current or previous investigation. In these situations, an FBI employee may collect whatever information the person is willing to provide, except solely First Amendment information, and may document the results of the contact in an FD-71 /Guardian, or with an EC or FD-302. These documents may be uploaded in files that are relevant to an open Assessment or Predicated Investigation, a closed Assessment or Predicated Investigation, a zero classification file, or a control file (if no further investigative activity is required). 18.5.6.4.18 (U) FBIHQ OPERATIONAL DIVISION REQUIREMENTS A) (U//FOUO) Counterintelligenc e Division: Interviews conducted during counterintelligence Assessments and Predicated Investigations must comply with the requirements contained in the Memorandum of Understanding between the Department of State and the FBI on Liaison for Counterintelligence Investigations. The FBIHQ Counterintelligence Division PG contains interview approval requirements. 18-35 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versio•1 Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 B) (U//FOUO) Other FBIHQDivisions: Each FBIHQ division may provide additional interview notice requirements in its PG. 18.5.6.5 (U) USE/DISSEMINATION (U//FOUO) The use or dissemination of information obtained by this method must comply with the AGG-Dom and DIOG Section 14. Version Dated: October 15, 2011 18-36 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.7 (U) INVEST/GA §18 TIVE METHOD: INFORMATION VOLUNTARILY PROVIDED BY GOVERNMENTAL OR PRIVATE ENTITIES (U) See AGG-Dom, Part II.A.4.g. 18.5.7.1 (U) SCOPE (U//FOUO) An FBI employee may accept information voluntarily provided by federal, state, local, tribal, or foreign governmental or private entities and individuals. Voluntarily provided information includes , but is not limited to, oral as well as documentary and physical evidence such as a computer hard drive or other electronic media that contains information , paper documents containing information, or physical objects (e.g., handgun or narcotics). (U//FOUO) Nothing in this section prohibits asking for or accepting volunteered access to personal or real property. (U//FOUO) Note: Consent Searches are authorized in Assessments, as well as Predicated Investigations. (U//FOUO) Note : If the originator of information reported to the FBI characterizes an individual, group , or activity in a certain way, and that characterization should be documented for completeness of the FBI record, the FBI record (i.e., 302, EC, LHM) should reflect that another party, and not the FBI, is the originator of the characterization. 18.5.7.2 (U) APPLICATION (U//FOUO) This investigative method may be used prior to opening an Assessment, in Assessments, Predicated Investigations, foreign intelligence collection investigations, and for assistance to other agencies when it is not otherwise prohibited by AGG-Dom, Part III.B.2-3. 18.5.7.3 (U) APPROVAL (U//FOUO) Supervisory approval is not required to accept voluntarily provided information. Personnel may not request nor knowingly accept information where disclosure would be prohibited by federal law. See, e.g., 18 U.S .C. § 2702 (prohibiting an entity providing electronic communications services from divulging certain communications and other :-ccords, except in certain circumstances). 18.5.7.4 (U) USE/DISSEMINATION FOUO) The use or dissemination of information obtained by this method must comply ., :th the AGG-Dom and DIOG Section 14. 18-37 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Version Dated: October 15, 2011 18-38 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.8 §18 (U) INVEST/GA TIVE METHOD: PHYSICAL SURVEILLANCE {NOT REQUIRING A COURT ORDER) (U) See AGG-Dom, Part II.A.4.h - "Engage in observation or surveillance not requiring a court order." Note: Consent Searches are authorized in Assessments. (U) For additional information regarding physical surveillance during Assessments or predicated national security investigations, see DIOG Appendix G - Classified Provisions . 18.5.8.1 (U) SCOPE (U//FOUO) Physical Surveillance Defined: Physical surveillance is the deliberate observation of persons, places, or events, on either a limited or continuous basis, in areas where there is no reasonable expectation of privacy. (U//FOUO) Distinction between Casual Observation and Physical Surveillance: A bright line cannot be drawn between "casual observation" and "physical surveillance ." The distinction is necessarily determined by the facts and circumstances at hand. "Casual observation" should be short in duration and narrow in scope. (U//FOUO) The following factors should be considered when determining whether a particular plan of action constitutes "casual observation," for which there is no approval requirement, or "physical surveillance," for which there may be approval requirements (see DIOG Section 18.5.8.2 below): A) (U//FOUO) The duration and frequency of the observation of a particular person or location. The longer or more frequent it is, the more likely it is physical surveillance; B) (U//FOUO) The location of your observation point. A covert observation point is more likely to be viewed as physical surveillance; C) (U//FOUO) Whether the observation is done from a stationary position or a moving position, and, whether the purpose of moving is limited to obtaining a license plate number or other identifying information. Moving for purposes of following the person to ascertain where he or she is going is more likely to be physical surveillance; and D) (U//FOUO) Whether the observation is being done with the unaided eye. Aided observation by telephoto lenses or binoculars, particularly for an extended period, is more likely to be physical surveillance. (U//F OUO) Surveillance Enhancement Devices: The use of mechanical devices operated by the user (e.g., binoculars; hand-held cameras; remotely operated, continuously monitored came ras; radiation, chemical or biological detectors) is authorized as part of physical surveillance provided that the device is not used to collect information in which a person has a reas onable expectation of privacy ( e.g., equipment such as a parabolic microphone or other listening device that would intercept a private conversation or thermal imaging a home is not perm itted). CCTVNideo Surveillance as defined in DIOG Section 18.6.3.3.A is not authorized for use during an Assessment (e.g., a pole camera cannot be used during an Asses sment if it is not continuously monitored, even if it is set to surveil an area in which there is no reasonable expectation of privacy). 18-39 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.5.8.2 (U) APPLICATION (U//FOUO) This investigative method may be used in Assessments, Predicated Investigations, foreign intelligence collection investigations, and for assistance to other agencies when it is not otherwise prohibited by AGG-Dom, Part III.B.2-3. 18.5.8.3 (U) APPROVAL (U//FOUO) During an Assessment, physical surveillance may be approved for a period of time not to exceed 72 hours as explained further below . 18.5.8.3.1 (U //FOUO) STANDARDS FOR OPENING OR APPROVING PHYSICAL SURVEILLANCE DURING AN ASSESSMENT (U//FOUO) During an Assessment, in addition to the standards contained in DIOG Sections 5.5 and 5.8, the FBI employee and supervisor must consider the following: A) (U//FOUO) Whether the physical surveillance is rationally related to the articulated purpose and objective of the Assessment; B) (U//FOUO) Whether the physical surveillance is the least intrusive alternative for acquiring needed information; C) (U//FOUO) If the physical surveillance is for the purpose of determining a pattern of activity , whether there is a logical nexus between the purpose of the Assessment and the pattern of activity the employee is seeking to determine; and D) (U//FOUO) If being conducted in order to gather positive foreign intelligence , whether the surveillance is consistent with the requirement that the FBI employee operate openly and consensually with a USPER, to the extent practicable . 18.5.8.3.2 (U//FOUO) 72-HOUR PERIOD FOR ASSESSMENTS (U//FOUO) In an Assessment, an FBI employee must use the FD-71 or Guardian (for Type 1 & 2 Assessment activities) or an EC (for Type 3, 4, and 6 Assessment activities) to request SSA or SIA approval prior to conducting physical surveillance. If exigent circumstances arise , the FBI employee can conduct physical surveillance without prior approval but must within 24-hours complete an FD- 71, Guardian, or EC seeking supervisor approval for the surveillance. (U//FOUO) In the appropriate system (FD-71 or Guardian), the reason and objective of the physical surveillance must be documented, and the approved 72-hour period of surveillance must begin as stated in the plan at the opening of surveillance. During the 72-hour period, there is no limitation on the use of continuous fixed or moving physical surveillance so long as the activities are consistent with the reason approved by the SSA or SIA. The SSA or SIA may approve physical surveillance requests in incremental periods no longer than 72-hours each. The employee cannot submit one request for multiple 72-hour periods of physical surveillance to the supervisor. For example, if supervisory approval is acquired for a documented plan which specifies that a surveillance will begin at 8:00 a.m. on Monday, September 15, 2008, the 72-hour period of surveillance will expire at 8:00 a.m. on Thursday , September 18, 2008 . At or near the end of a 72-hour period of time, if the employee Version Dated: October 15, 2011 18-40 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 determines that additional physical surveillance is required , the employee may request supervisor authorization to conduct subsequent physical surveillance for an additional period of no more than 72 hours each . All supervisory approvals , if required , and the results of physical surveillance must be documented in the appropriate Assessment or Predicated Investigation file after review by the supervisor. 18.5.8.3.3 (U//FOUO) MOBILE SURVEILLANCE TEAM (MST) OR MOBILE SURVEILLANCE TEAM -ARMED (MST-A) (U//FOUO) An employee may request the use of an MST or MST-A during an Assessment or Predicated Investigation by documenting the purpose and objective in an FD- 71, Guardian , an EC, or other appropriate form requesting Assistant Special Agent in Charge (ASAC) approval. (U//FOUO) MSTs and MST-As are overseen and managed by the Mobile Surveillance Unit (MSU) at FHIHQ. For additional information on MST resources refer to the CIRG PG. 18.5.8.3.4 (U) AVIATION RESOURCES (U//FOUO) An FBI employee may request the use of aviation resources , to include Forwardlooking Infrared (FLIR) devices mounted in fixed-wing and rotary-wing aircraft , during an Assessment or Predicated Investigation by documenting the reason and objective in an FD-71 , Guardian, an EC , or other appropriate form requesting ASAC approval. 18.5.8.3.4.1 (U//FOUO) FORWARD-LOOKING INFRARED (FLIR) CAMERAS (U//FOUO) Thermal imaging , sometimes called FLIR , cameras may be operated as handheld devices or mounted in fixed- and rotary-wing aircraft . Infrared cameras produce images of invisible infrared or "heat" radiation. FLIR is used to assist in visual surveillance during various operational scenarios , including perimeter surveillance , search and rescue operations , vehicle pursuits , and to locate fugitives or otherwise to track objects or subjects in open areas or within the curtilage of a dwelling that cannot easily be observed on the ground without detection. 18.5.8.3.4.1.1 (Ul!FOUO) AIRCRAFT-MOU N TED VIDEO OR FLIR (U//FOUO) Typically , aerial FLIR is deployed to supplement ground-based physical surveillance to enhance the safety of the mission or when surveillance teams are unable to maintain close-in surveillance becau se of the risk of detection. The use of thermal imaging, especially during nighttime hours , can alert officers to potential dangers , such as an ambush or suspects hiding in bushes or other perimeter areas . If FLIR is being used for surveillance outside of the home- in open fields , forests , highways , and possibly , the area surrounding a home , known as the curtilage - a search warrant is not required because those areas do not enjoy Fourth Amendment protection from aircraft-mounted surveillance . If FLIR is being used to obtain information regarding the interior of the home that is otherwise unknowable without physical intrusion , it likely constitutes a search subject to the requirements of the Fourth Amendment. 18-41 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) Example of a use of FLIR that requires a search warrant: if used to detect heat emanating from within a home to make inferences about the use of high-powered marijuana-growing lamps inside the home (Kyllo v. United States, 533 U.S. 27 (2001)) . (U//FOUO) If a aircraft-mounted FLIR device is to be used: 1) (U//FOUO) The aircraft must be in public airspace and comply with Federal Aviation Administration (FAA) regulations regarding altitude; 2) (U//FOUO) Overflights of private residential neighborhoods should be avoided if operationally feasible; 3) (U//FOUO) To the extent heat signatures may be incidentally collected from homes (not the curtilage), no affirmative investigative use may be made of such information, unless exigent circumstances or other authorization permits its use; and 4) (U//FOUO) FLIR surveillance designed to capture and qualitatively analyze the heat signature of a private residence cannot be authorized without a properly issued search warrant (or applicable exception). (U//FOUO) CDC review must be obtained for aircraft-mounted FLIR when the use exceeds the specific DIOG restrictions as set forth in Section 18.5.8 .2.4 .1.1.2 above. In such investigations , CDC review is needed to determine whether additional legal requirements apply to the use of aircraft-mounted FLIR equipment (i.e., a court order) . Such additional review must be documented in an EC requesting approval for the exceptional use of aircraft-mounted FLIR; such use may not be authorized in an Assessment. 18.5.8.3.4.2 (U//FOUO) AVIATION VIDEO SURVEILLANCE (U//FOUO) The following guidelines govern the use of video equipment that is permanently mounted to an aircraft and to the operation ofFLIR equipment when there is no intrusion into areas in which a person has a reasonable expectation of privacy. Such recordings must be maintained in the investigative electronic surveillance (ELSUR) subfile. The following procedures must be followed: A) (U//FOUO) Each flight must use new recording media. The recording must begin when the sensor is deployed, it may not be stopped and restarted, and the entire investigative mission must be recorded; B) (U//FOUO) Each recording media must be labeled with the following information: FBI file number, date, operator name and initials, time on and time off; and C) (U//FOUO) Each recording media must be treated as an original. For those aircraft that have the capability to create two recordings simultaneously, both must be treated as originals. 18.5.8.3.4.3 (U//FOUO) COMPLIANCE AND MONITORING (U//FOUO) Authorization documents regarding the use ofFLIR and aviation video surveillance must be documented in the investigative ELSUR file. Version Dated: October 15, 2011 18-42 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.8.4 §18 (U) OTHER PHYSICALSURVEILLANCE (U//FOUO) Physical surveillance conducted by employees, other than through use of the resources discussed above (i.e., MSTs, MST-As and aviation), during a Predicated Investigation does not require supervisory approval. In addition, the 72 hour time limitation on the use of MST or MST-A is not applicable during Predicated Investigations. 18.5.8.5 (U) MAINTAINA "SURVEILLANCE LOG"DURINGPHYSICALSURVEILLANCE (U//FOUO) A surveillance log must generally be maintained for the purpose of documenting observations made during the period of physical surveillance. The log is a chronological narrative detailing the observations noted during the surveillance. A team member must be assigned to maintaining the surveillance log. At the end of the shift, each individual must initial on the surveillance log the notations of the activities he or she observed. Completed surveillance logs must be incorporated into the investigative file. Any original notes must be permanently retained in a lA envelope (FD-340a) in the investigative file. Surveillance logs must be concise and factual. When reporting locations, the surveillance log must be as specific as possible. Surveillance team members must avoid over-reporting and including unnecessary information; logs are subject to discovery in legal proceedings. 18.5.8.6 (U) USE/DISSEMINATION (U//FOUO) The use or dissemination of information obtained by this method must comply with the AGG-Dom and DIOG Section 14. 18-43 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 1s.201: §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Version Dated: October 15, 2011 18-44 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.5.9 §18 (U) INVEST/GATIVEMETHOD: GRAND]URY SUBPOENAS- FOR TELEPHONEOR ELECTRONICMAILSUBSCRIBERINFORMATIONONLY{IN TYPE 1 & 2 ASSESSMENTS) (U) See AGG-Dom, Part II.A.4.i. (U) See DIOG Section 18.6.5 for additional information on use of Federal Grand Jury (FGJ) subpoenas in Predicated Investigations. 18.5.9.1 (U) SCOPE (U//FOUO) During a Type 1 & 2 Assessment, an FBI employee may request from an appropriate USAO the issuance of a FGJ subpoena for the limited purpose of obtaining subscriber information associated with a telephone number or e-mail address. A FGJ subpoena, under this provision, may not be requested for the purpose of collecting foreign intelligence. For more information regarding FGJ subpoenas, see DIOG Section 18.6.5. 18.5.9.2 (U) APPLICATION (U//FOUO) This investigative method may be used only in Type 1 & 2 Assessments. It may not be used in a Type 3, 4, 5, or 6 Assessment. 18.5.9.3 (U) APPROVAL (U//FOUO) In Type 1 & 2 Assessments, telephone and electronic mail subscriber information may be requested through the use of an FGJ subpoena without supervisory approval. An agent requesting a grand jury subpoena during an Assessment must advise the AUSA, who will issue the subpoena, that the FBI is conducting an Assessment. The AUSA must determine whether there is sufficient connection between the Assessment and possible criminal conduct to warrant issuance of a FGJ subpoena. FGJ subpoenas may not be sought during a Type 3, 4, 5, or 6 Assessment. 18.5.9.4 (U) ELECTRONICCOMMUNICATIONSPRIVACY ACT (ECPA) (18 U.S.C. §§ 2701- 2712) (U//FOUO) 18 U.S.C. § 2703(c)(2) states that "a provider of electronic communication service or remote computing service shall disclose to a governmental entity the: (i) name; (ii) address; (iii) local and long distance telephone connection records, or records of sessions, times and durations; (iv) length of service (including start date) and types of service utilized; (v) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (vi) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses a Federal Grand Jury subpoena." However, in Type 1 & 2 Assessments only subscriber information may be obtained through the issuance of a FGJ subpoena, other customer information described above can only be obtained in a Predicated Investigation. See DIOG Sections 18.6.4 - 18.6.8. 18-45 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: Octobtr 15, 2011 §18 18.5.9.5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (U) USE/DISSEMINATION (U//FOUO) Because judicial districts vary as to whether subscriber records obtained through use of a FGJ subpoena must be handled pursuant to the FGJ secrecy rules as "matters before the grand jury," subscriber records obtained pursuant to a FGJ subpoena should be protected as required by the judicial district (e.g., USAO) in which the FGJ subpoena is issued. In addition, in those judicial districts in which subscriber records obtained pursuant to a FGJ subpoena are considered to be "matters before the grand jury," no documentation of the actual subscriber records should be made in the FD-71 or Guardian . Instead, a copy of the FGJ subpoena and the responsive subscriber records must be filed in a 1A, 1B, or 1C and uploaded to the GJ subfile. Due to developing law on this issue, employees should consult with the AUSA to determine whether such documents are considered to be FGJ materials and must handle them accordingly. The use or dissemination of information obtained by this method must comply with the AGG-Dom, DIOG Section 14, and the Federal Rules of Criminal Procedure (FRPC) Rule 6. Version Dated: October 15, 2011 18-46 UNCLASSIFIED - FOR OFFICIAL USE ONLY : : : : : -+$23(": ,5$23(&!3(-,2:!,#: .$1!3(-,2: 4(#$: 9 $$: -+ : !/3: :!,#: !/3: ,: /$)(+(,!07: ,5$23(&!3(-,2:3'$:!43'-1(8$#:+$3'-#2:(,")4#$:3'$:%**-6(,& . 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Sample NSLs are available. NSLs may not be issued in an Assessment. 18.6.6.3.3 (U) APPROVAL R EQUIREMENTS (U //FOUO) The process for creating an NSL involves two documents: the NSL itself and the EC approving the issuance of the NSL. The authority to sign NSLs has been delegated to the Deputy Director, Executive Assistant Director, and Associate EAD for the National Security Branch; Assistant Directors and all DADs for CT/CD/Cyber; General Counsel; Deputy General Counsel for the National Security Law Branch; Assistant Directors in Charge in NY, WFO, and LA; and all SACs. This delegation includes FBI officials properly designated to serve in these positions in an acting capacity. No other delegations are permitted. The following requirements for designating an acting official are particular to NSLs and are more restrictive than the Succession and Delegation Policy set forth in DIOG Section 3: A) (U//FOUO) When traveling on official orders outside the geographical limits of the field office or division, on leave, or otherwise unavailable to fulfill the duties of their positions: ADICs and SACs may designate an immediate subordinate, no lower than an ASAC as Acting ADIC or SAC (respectively); and HQ officials may designate a subordinate no lower than a Section Chief as Acting AD or DAD. Such designations must be documented in 3 l 9X-HQA1565545-XX in which the last two alpha characters designate the office, division, or Legat. See DIOG Section 3.4.3.3. B) (U//FOUO) Those designated as acting officials for purposes of signing NSLs must be properly trained on NSL policies as set forth in Corporate Policy Notice 0227N. Any designation must be made in writing with notice to the supervisory ADIC (if any) or to the Deputy Director. In addition, a hard copy of such standing orders must be forwarded to the supervisory ADIC (if any) or to the Deputy Director. The designation may be accomplished by a record email or EC, expressly stating the date on which the acting official's authority becomes effective. All such emails or ECs must be uploaded and maintained in an appropriate control file in the office in which the acting official is acting. C) (U//FOUO) ADICs, SACs, and HQ officials may also choose to document by EC a "standing order of succession," which automatically takes effect when they are traveling, absent, or unavailable. The EC documenting the standing order of succession must be approved by that official , or if unavailable, by the Deputy Director, and uploaded and maintained in the appropriate administrative file as set forth in Section 3.4.3. The EC must indicate under what circumstances the standing order of succession takes effect. (U) Additional details and instructions can be found in Corporate Policy Notice 0227N. Version D 1ted October lS,2011 18-94 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) In addition to being signed by a statutorily-required approver , every NSL must be reviewed and approved by a CDC , ADC (or attorney acting in that capacity) , or an NSLB attorney. 18.6.6.3.4 (U) STANDARDS FOR ISSUING NSLs (U) The standard for issuing an NSL, except under 15 U.S.C . § 1681v, is that the material sought is relevant to an authorized investigation to protect against international terrorism or clandestine activities, provided that such an investigation of an USPER is not predicated solely on activities protected by the First Amendment of the Constitution of the United States . Thus, an NSL may not be issued unless the information sought is relevant to an open and authorized Preliminary Investigation (PI) or Full Investigation (Full). NSLs may not be issued in an Assessment. (An NSL request for a full credit report is not available in counterintelligence investigations unless there is an international terrorism nexus. 15 U.S.C. § 1681v.) (U//FOUO) Information is relevant if it tends to make a fact more or less probable. In the context ofNSLs , there must be a reasonable belief that the information sought through the NSL either supports or weakens facts being investigated in an investigation . For example , financial records believed to support a subject's assertion that he or she was in the United States at a given time when the FBI believes he or she was outside the United States are relevant to the investigation because they tend to exculpate the subject. On the other hand , phone records of a sibling of a subject of an investigation not known to be in contact with the subject would not, barring additional information , be relevant to the national security investigation. (U//FOUO) ln addition to the information being relevant , the investigation of an USPER cannot be conducted solely based on activities protected by the First Amendment. For example, the FBI cannot issue an NSL for phone records of an individual solely because the individual attends a mosque that is also attended by international terrorism (IT) subjects. The individual's attendance at a place of worship is First Amendment-protected activity, on which the FBI cannot base an investigation. On the other hand , if the FBI reasonably believes that, in addition to attending the same mosque as the IT subjects, the individual received money transfers from IT subjects, then an NSL seeking his or her phone or bank records would be relevant to a national security investigation and would not be based solely on First Amendment-protected activities. (U//FOUO) The EC that requests the issuance of an NSL must provide a sufficiently detailed explanation of the predication for the investigation and the relevance of the material sought by the NSL so that a meaningful review can be conducted. The information necessary to make a judgment regarding predication and relevance should be contained in the four corners of the EC. If the necessary information cannot be included in the EC because , for example , the information is classified Top Secret or the investigation involves insider espionage , the EC should clearly reference the source document that provides the predication and explain why the underlying information cannot be included in the EC. (U//FOUO) Approval of an NSL must include a review of the predication of the underlying investigation. Although there is no legal review for opening an investigation , there must be a 18-95 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver<;on DdtE'd October 1<;, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide review of the predicate for the investigation in determining whether an NSL request meets the legal standard of the relevant statutory authority. (U//FOUO) As with all investigative methods, before requesting an NSL, the employee initiating the request should consider whether an NSL is the least intrusive and reasonable means based upon the circumstances of the investigation to obtain the needed information. See DIOG Section 4.4. 18.6.6.3.5 (U) SPECIALPROCEDURESFORREQUESTINGCOMMUN/CATJONSUBSCRIBER INFORMATJON (U//FOUO) If only subscriber information is needed for an investigation, an NSL should be issued for subscriber records rather than a broader request for subscriber and toll billing/transactional records. (U//FOUO) Generally, all toll billing /transactional records responsive to the NSL may be uploaded into FBI databases . Before issuing NSLs seeking to identify a subscriber of facilitie contained in such toll/transactional records , the employee should determine whether the identities of the subscribers of some or all of the telephone numbers /email accounts identified in the toll billing /transactional records are needed to advance the investigation. If so, the employee may issue subsequent NSLs to identify the subscriber(s) of such telephone number or email accounts. NSLs should not be used to identify the subscribers of numbers or email accounts if that information is not needed to advance the investigation and should not be issued unless and until that identity becomes needed for the investigation or some other investigation. (U//FOUO) If a subscriber's identity may contribute to the investigation, the investigator should also consider whether an NSL is the least intrusive and reasonable means to obtain the information. In some instances, information obtained from open source or government databases may be sufficient to meet investigative needs. The information obtained from such sources may not be current or accurate; however, those factors, among others, should be considered in determining whether to issue an NSL. 18.6.6.3.6 (U) DURATION OFAPPROVAL (U) The authority for an NSL remains valid until the information requested is fulfilled. 18.6.6.3.7 (U) SPECIFICPROCEDURES (U//FOUO) A cover EC that documents the relevance of the information sought and the need for non-disclosure (if a non-disclosure provision is included in the NSL) must accompany all NSLs. All NSLs, with limited exceptions discussed below, must be created on the NSL subsystem to the FISA Management System (FISAMS). The EC must reference an investigative file- not a control file- to which the information sought is relevant. (U//FOUO) The NSL subsystem allows for the web-based creation ofNSLs and supporting ECs. Use of the subsystem ensures that the information in the NSL is consistent with the Version Dated: October 15, 2011 18-96 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 supporting EC, the appropriate statutory authority is cited, and the necessary approvals are obtained. (U//FOUO) Under the following circumstances only, NSLs may be created outside the NSL subsystem: A) (U//FOUO) NSLs seeking second-generation/community ofinterest information: These NSLs require specific language and require a demonstration of the relevance of the secondgeneration information to the investigation. This type of NSL request is used rarely and is a subset ofNSLs served by the Communications Analysis Unit (CAU). This type ofNSL is not yet available in the NSL subsystem. Such NSLs may only be created outside the NSL subsystem with prior approval from the Deputy General Counsel (DGC) of the National Security Law Branch (NSLB). The DGC's approval must be documented in the EC authorizing the NSL. B) (U//FOUO) Time sensitive situations: If there is an emergency or other time sensitive matter in which not all approvals required in the NSL subsystem can be timely completed or technical issues pose a barrier to using the NSL subsystem, the NSL and EC may be created outside the NSL subsystem. The EC authorizing the NSL must explain why the NSL is "time sensitive." C) (U/FOUO) Insider espionage investigations: Sensitive insider espionage investigations may justify the creation ofNSLs outside the NSL subsystem. Such NSLs may only be created outside the NSL subsystem with prior approval from the DGC ofNSLB or an NSLB Section Chief. The approval of the NSLB DGC or Section Chief must be documented in the EC authorizing the NSL. D) (U//FOUO) NSLs requiring specific limiting language: Such NSLs may only be created outside the NSL subsystem with prior approval from the DGC ofNSLB or an NSLB SC. The approval of the NSLB DGC or Section Chief must be documented in the EC authorizing the NSL. E) (U//FOUO) Curative NSLs: These NSLs are issued to provide authority to retain information already provided in response to an earlier NSL. The EC authorizing the NSL must state that the NSL is a "curative NSL" and include a brief explanation why a curative NSL is necessary . F) (U//FOUO) NSLs containing non-standard language: These NSLs seek, for example, a specific bank record rather than all financial records in the bank's possession , or a specific type of electronic communication transactional record rather than all transactional records. Such NSLs may only be created outside the NSL subsystem with the prior approval of the DGC ofNSLB, an NSLB SC, or the Unit Chief of the National Security Law Policy and Legislative Review Unit ofNSLB. The NSLB's approval must be documented in the EC authorizing the NSL. /F OUO) NSLs created outside the NSL subsystem must be created using the model NSLs and ECs available on the NSLB website . In every case in which an NSL is created outside the . · L subsystem, the EC approving the issuance of that NSL must include the following ~nformation: (i) the reason the NSL was created outside the NSL subsystem; and (ii) if prior ppro al was required, from whom it was obtained. Such NSLs must contain a lead to NSLB :o that information needed for Congressional reporting purposes can be recorded, as well as a ' ad to the relevant HQ operational unit for informational purposes. 18-97 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 20 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) No later than ten (10) days after the issuance of an NSL outside the NSL subsystem, both the NSL and EC must be uploaded to ACS (unless otherwise exempted from uploading into ACS), as well as forwarded via email to NSLB at the following email addre : HQ_DIV09 _NSL _REPORTING. If the investigation involves a particularly sensitive matter that precludes emailing the NSL and/or EC, then a separate EC, containing notice of the sensitivity and the statistical information needed for tracking NSLs, must be sent to the DGC of NS LB. (U//NFOUO) Any question concerning whether an NSL may be created outside the NSL subsystem must be directed to NSLB. (U//FOUO) For additional information regarding seeking subscriber identifying information. see the Attorney General approved Procedures for the Collection, U se, and Storage of Inforn1ation Derived from National Security Letters. 18.6.6.3.7.1 (U)COVEREC (U//FOUO) The EC must reference an investigative file-not information sought is relevant. a control file-to which the (U//FOUO) If non-disclosure of the NSL is sought, the EC must set forth the factual predicate for imposing non-disclosure. The certification supporting a non-disclosure obligation must assert that disclosure may endanger national security; interfere with a criminal, counterterrorism, or counterintelligence investigation; interfere with diplomatic relations; or endanger the life or safety of any person. Accordingly, the EC must establish why any of those dangers may arise from disclosure of the NSL. Possibilities include: A) (U//FOUO) Disclosure may prematurely disclose a national security investigation to the target and thereby cause him or her to change his or her behavior patterns to thwart detection; B) (U//FOUO) Disclosure may prematurely disclose a national security investigation to other individuals who work with or in some way are affiliated with the target or the subject matter of the national security investigation and thereby cause the other individuals to change their behavior patterns to thwart detection; C) (U//FOUO) Disclosure may alert other individuals who use the service of the NSL recipient that the recipient has been asked to provide information to the FBI, and thereby cause the other individuals to change their behavior to thwart detection. D) (U//FOUO) Disclosure may persuade those engaged in questionable activities to avoid patronizing the entity known to be subject to requests to reveal account information and thereby allow those persons to thwart detection; E) (U//FOUO) Disclosure may prematurely disclose a national security investigation and thereby cause surveillance techniques to be compromised or endanger undercover FBI employees and confidential sources ; F) (U//FOUO) Disclosure may prematurely disclose a national security investigation and thereby provide an opportunity for someone to create intentionally-flawed (i.e. , compromised) foreign intelligence ; G) (U//FOUO) Disclosure may prematurely disclose a national security investigation involving an hostage situation and thereby endanger the life or safety of a hostage; V<:.rs10n'.1 t 0 -t:obe l '"i lO LI 18-98 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 H) (U//FOUO) Disclosure may prematurely disclose a national security investigation and thereby cause the subject or a material witness to flee or to destroy or tamper with evidence; I) (U//FOUO) Disclosure may prematurely disclose a national security investigation and thereby result in publicity that makes it difficult for the target of the NSL and/or others to receive a fair trial; J) (U//FOUO) Disclosure may prematurely disclose a national security investigation involving an imminent threat of terrorism and thereby endanger the life or safety of others; or K) (U//FOUO) Disclosure may reveal the existence of a national security investigation involving a foreign government and thereby damage diplomatic relations. (U//FOUO) This list is not exhaustive. There may be other reasons why an NSL should not be disclosed, and if so, those reasons should be set forth in the EC. 18.6.6.3.7.2 (U) COPY OF NSL (U//FOUO) A copy of the signed NSL must be retained in the investigative file and be uploaded under the appropriate NSL document type in ACS. Documented proof of service ofNSLs must also be maintained in the NSL sub- file. 18.6.6.3.7.3 (U) SECOND-GENERATION INFORMATION (U//FOUO) Under limited circumstances, one NSL may simultaneously request toll or transactional information for a "seed number" (normally the target of the investigation) and toll or transactional information for all telephone numbers that have been in contact with the seed number ("second-generation records"). If an NSL seeks second-generation records, the NSL EC must clearly state that second-generation information is being sought and demonstrate the relevance of the second-generation information to the national security investigation. Second-generation phone numbers for which information is obtained must be separately reported to NSLB for Congressional reporting purposes. Requests for second-generation information may only be approved by the DGC ofNSLB. 18.6.6.3.7.4 (U) CONTACT WITH MEMBERS OF THE NEWS MEDIA BY A "SEED NUMBER" (U//FOUO) A second generation NSL may not be used if there is reason to believe the "seed number" has been in contact with members of the news media. 18.6.6.3.7.5 (U) EMERGENCY CIRCUMSTANCES (U//FOUO) ECP A protects subscriber or communications transactional information from disclosure by providers of telephone or other electronic communication services. Generally, an NSL, grand jury subpoena, or another form of legal process must be used to compel a communication service provider to disclose subscriber or transactional information. In emergency circumstances, however, the provider may voluntarily disclose information to the FBI if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person exists and requires disclosure without delay. As a matter of FBI policy, when there is a danger of death or 18-99 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver<;io 1 Dated· October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 serious physical injury that does not permit the proper processing of an NSL, an administrative subpoena (if permissible), a grand jury subpoena, or a letter to the provid er citing 18 U.S.C. § 2702 may be used to request emergency disclosure, if approved by a SAC, ASAC , or FBIHQ Section Chief. If time does not permit the issuance of an emergency letter citing 18 U.S.C. § 2702, an oral request to the provider may be made , but the oral request must be followed-up with a letter to the particular provider. In either situation , an FD-1053 Form, which automatically generates the letter, must be completed . (U//FOUO) The letter (an FD-1053) serves to: (i) obtain the required approval of a SAC or ASAC in a field office or a Section Chief in FBIHQ; and (ii) document the factual basis for the emergency disclosure for inclusion in the investigative file or in a control file (if no investigative file has been opened) . (U//FOUO) This FD-1053 letter should be used instead of any form provided by the provider. If the provider insists that its form must be used in lieu of the standard letter, the provider's form may be used after the form is carefully reviewed and appropriately edited to make clear that: (i) 18 U.S.C . § 2702 authorizes the emergency disclosure; and (ii) subsequent legal process is neither provided nor required by§ 2702 and, therefore , no follow-up legal process will be provided. Questions concerning language in the provider ' s form should be directed to the CDC or OGC/NSLB (national security emergencies) or ILU (criminal law emergencies). 18.6.6.3.8 [U) NOTICE AND REPORTING REQUIREMENTS (U//FOUO) The National Security Law Branch at FBIHQ compiles NSL statistics for reporting to Congress . The NSL subsystem (FISAMS) automatically records the information needed for Congressional reporting. If the NSL is created outside the subsystem, the EC must include all information necessary for NSLB to report NSL statistics accurately. The EC must delineate the number of targeted phone numbers /e-mail accounts /financial accounts that are addressed to each NSL recipient. For example , if there are three targets , ten accounts, and six recipients of an NSL , the EC must state how many accounts are the subject of the NSL as to Recipient 1, Recipient 2, etc. It is not sufficient to indicate only that there are ten accounts and six recipients. (U//FOUO) In addition, the FBI must report the USPER status of the subject of all NSLs (as opposed to the target of the investigation) , other than NSLs that seek only subscriber information. While the subject is often the target of the investigation, that is not always the case. The EC must reflect the USPER status of the subject of the request - the person whose information the FBI is seeking. If the NSL is seeking information about more than one person , the EC must reflect the USP ER status of each person. (See the model ECs on the NSLB website.) 18.6.6.3.9 (U) RECEIPT OF NSL INFORMATION (U//FOUO) Immediately after receiving material in response to an NSL and before uploading it into any FBI database , the employee who initiated the request for the NSL , including an employee of an FBIHQ operational Unit who initiates an NSL in an investigati ve file that was opened by and resides in a field office , is responsible for ensuring that the Version Dated. October 15, 2011 18-100 UNCLA.SSWlED - rOR OrrlClAL USE ONL'{ UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 received information is responsive to the request and that there has been no overproduction. If the information is appropriately responsive, the employee who initiated the request for the NSL must ensure that the information is stored in the appropriate investigative file and that receipt of the material is documented in the NSL subsystem. Relevant information properly obtained in response to a valid NSL may be uploaded thereafter into any database. For procedures on how to handle electronic returns from certain ISPs see DIOG Section 18.6.6.3.10. (U//FOUO) Any material that is not covered within the four corners of the NSL request (including the NSL attachment) must be handled as discussed below. Such information can fall into two categories. First , it can be irrelevant information (hereafter "Irrelevant Information"), which the FBI has no right either to seek or retain. Irrelevant Information is collected, for example, when a telephone company transposes numbers in a telephone number and thereby provides toll billing information concerning the wrong telephone number. Second, it can be relevant information (hereafter "Relevant Overproduction") but be in excess of what the NSL requested. Relevant Overproduction occurs, for example, when the NSL seeks financial records on John Doe for a specified period. The bank provides the requested records, but the bank also provides records on John Doe beyond the specified period. Both Irrelevant Information and Relevant Overproduction constitute an overproduction, and they must be treated distinctly as described below. (U//FOUO) Irrelevant Information may not be retained or uploaded into any FBI database. It is therefore critical that all information returned in response to an NSL be reviewed BEFORE uploading it into any FBI database, including Telephone Applications. Any Irrelevant Information must either be destroyed or returned to the entity that produced it, at the discretion of the field office or division from which the NSL originated. FBI employees are permitted to destroy the overproduced information, although an SSA must approve the scope of what is to be destroyed. Any Irrelevant Information that is returned electronically and reviewed in Data Warehouse System-ELSUR Data Management System (DWS-EDMS) must be destroyed using the process established in that system. Ifthere is any question whether the information provided is within the scope of the NSL, the CDC or ADC must be consulted. (U//FOUO) Relevant Overproduction must be sequestered with the employee's supervisor and may not be uploaded into any FBI database or used in the investigation until another NSL has been served to address the overproduction. The field office or HQ division may serve a "curative" NSL to authorize the retention and use Relevant Overproduction if: (i) the investigation is still pending , (ii) the overproduced information is relevant to the investigation , and (iii) the FBI may lawfully obtain the overproduced information under statutory authority (i.e., an NSL statute) . After the "curative" NSL has been served, the FBI may immediately upload and use the sequestered information. (U//FOUO) If the response contains relevant information within the scope of the NSL , but also contains irrelevant information or relevant overproduction, FBI employees may redact the irrelevant information or the relevant overproduction. The employee's supervisor must approve the scope of the redaction. If there is any question whether the information provided is within the scope of the NSL, the CDC or OGC must be consulted. The method of redaction is left to the discretion of the employee , but redacted information must not be visible, used in the investigation, or uploaded into any FBI database. The method of redaction will vary 18-101 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 depending on whether the information was provided in hard copy or electronically. After the irrelevant or overproduced information has been redacted, the remainder of properly produc e information may be uploaded into any database and used in the investigation. (U//FOUO) Incidents involving third-party overproduction in response to an NSL where the · FBI did not use or upload the overproduced information into any FBI database must be reported to OGC/NSLB for tracking purposes. This type of incident should not be reported a a potential IOB matter. OGC/NSLB will not adjudicate such matters or respond to the report . However, OGC/NSLB uses the information to track third-party NSL overproductions. Procedures for reporting such matters are set forth in sections 4.4 to 4. 7 of the Guidance on Intelligence Oversight Board (IOB) Matters, Policy Implementation Guide Ol 88PG. (U//FOUO) Incidents involving third-party overproduction in response to an NSL where the FBI used or uploaded the overproduced information into any FBI database must be reported as a potential IOB matter. Procedures for reporting such matters are set forth in sections 4.1 to 4.3 of the Guidance on Intelligence Oversight Board (IOB) Matters, Policy Implementation Guide 0188PG. (U//FOUO) All responsive records must be placed in an NSL sub-file of the investigative file. These records shall remain with the investigative file until the file is destroyed in accordance with the disposition schedule approved by the National Archives and Records Administratio n (NARA). The sub-file must be opened in ACS, and the receipt and filing ofrecords must be recorded in an EC. 18. 6. 6.3.10 (U) ELECTRONIC SERVICE AND ELECTRONIC RETURNS OF NSLs (U//FOUO) Effective January 31, 2011, absent exigent circumstances or restricted investigations, all NSLs served on certain Internet Service Providers (ISPs) will be served and returns will be received electronically. A current list oflSPs participating in electronic service and electronic returns ofNSLs will be maintained on FISAMS. (U//FOUO) All NSLs will continue to be created in compliance with DIOG Section 18.6.6. The process for service of the NSL will, however, be different. After the NSL has been approved in FISAMS, the employee who initiated the request for the NSL will receive an email notification that DWS-EDMS will deliver the NSL electronically. The field office that issues the NSL must promptly scan the signed NSL and email it to HQ_DIV_18_DITU_NSL. The original NSL must be placed in the appropriate NSL sub-file. Any changes to this proces will be posted on DWS-EDMS and FISAMS. (U//FOUO) NSL returns received electronically will only be available for review in a sequestered area of DWS-EDMS. When the NSL results have been received and loaded into DWS-EDMS, the initiator of the NSL and the case agent will receive notification that the results are available in DWS-EDMS for review for possible overproduced information. If any overproduced information is identified it must be removed from DWS-EDMS. After the employee has confirmed that there is no overproduction, the information may be released into the general DWS-EDMS database for analysis and investigation by any employee who has access to DWS-EDMS. Overproduced return information must be handled pursuant to the directions set forth in DIOG Section 18.6.6.3.9. Vers10n Dated: October 15, 2011 18-102 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) For NSL returns that are received electronically, the employee who initiated the request for the NSL or his/her designee must upload the electronic results into ACS by: A) (U//FOUO) Printing or exporting responsive return information into an Excel spreadsheet, a PDF document, or electronic medium (e.g., CD or DVD) from DWS-EDMS and storing it in the appropriate NSL subfile using a IA or FD340 envelope which will be reflected in ACS. All hard copy returns from other providers must continue being stored in a lA or FD340 envelope in the NSL subfile; and B) (U//FOUO) Uploading an EC confirming the receipt of the results, including the subject's information, and stating that the results can be located in DWS-EDMS. (U//FOUO) The employee who initiated the request for the NSL or his/her designee must also ensure that receipt of the records is documented within the NSL subsystem. If the employee wishes, the return information may also be uploaded to ACS or other databases. (U//FOUO) More information about DWS-EDMS, including its review and analytic tools, easy access links, and a step-by-step guide to requesting access can be obtained at the STAO web page (http ://home.fbinet.fbi/ST B/stao/ST A OOPS/ ATAU/Pages/DWS-EDMS.aspx). (U//FOUO) Any employee who may need access to NSL data received electronically (either for analytic or investigative purposes or to review for overproduction) must obtain access to DWS-EDMS. Instructions and requirements for gaining access to DWS-EDMS can be found on the ST AO web page noted above. 18.6.6.3.11 (U) DISSEMINATION OF NSL MATERIAL (U//FOUO) Subject to certain statutory limitations, information obtained in response to an NSL may be disseminated according to general dissemination standards in the AGG-Dom. The ECPA (telephone and electronic communications transactional records) and RFPA (financial records) permit dissemination if consistent with the AGG-Dom and the information is clearly relevant to the responsibilities of the recipient agency. FCRA permits dissemination of identity of financial institutions and consumer identifying information to other federal agencies as may be necessary for the approval or conduct of a foreign counterintelligence investigation. FCRA imposes no special rules for dissemination of full credit reports. (U//FOUO) Although the requesting EC is generally classified because it reflects the predicate for the investigation and the need for the NSL, NSLs are not classified nor is the material received in return classified. Information obtained in response to an NSL may be used in criminal proceedings without any declassification. In addition, information provided in response to an NSL that was obtained with an e-mail, telephone or other account number learned through FISA coverage is not considered FISA-derived and, therefore, approval from the Attorney General to use such information is not required. 18.6.6.3.12 (U) SPECIAL PROCEDURES FOR HANDLING RIGHT TO FINANCIAL PRIVACY ACT f NFORMA TION (U//FOUO) For financial records received in response to a RFPA NSL , the employee who initiated the NSL or his/her designee must review the various items contained within the records (e.g., checks written, items deposited, credit card charges) and determine whether the 18-103 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide information holds current or potential investigative value (i.e. , whether it provides a new investigative need, addresses an existing investigative need , contributes to an existin g intelligence collection requirement, or serves some other lawful investigative purpo se tha· arisen since the NSL was issued) or has the reasonable potential to provide other FBI or Intelligence Community employees information of value consistent with their missi on. Information that is determined not to have current investigative value but that is resp on i " the NSL may be retained in the hardcopy investigative file but may not be uploaded into .· or other electronic databases. (U//FOUO) Only items that have current or potential investigative value should be includ products uploaded into ACS . Typically, such information is uploaded into ACS by wa o: Excel spreadsheet or a summary of items by category ( e.g., wire transfers or deposit item included in an EC . An employee should upload the EC containing the summary of the re in an NSL sub-file in the electronic case management system so that such records ma y b later identified and easily retrieved. (U//FOUO) There is no requirement for determining the investigative value regardin g responsive information provided in response to a FCRA or an ECP A NSL because such information will always have investigati ve value or it is necessary to upload and eng age cross-correlations to ascertain value that may not be obvious . (U//FOUO) For additional information regarding the handling of information provide d in response to an NSL , see the Attorney General approved Procedures for the Collection, L.: and Storage of Infor mation Derive d from Nat ional Security Letters . 18.6.6.3 .13 (U) P AYMENT FOR NSL-D ERIVED INF ORMATION (U//FOUO) No legal obligation exists for the FBI to compensate recipients ofNSLs is u .._ pursuant to ECPA (telephone and electronic communications transactional records ) or FC,. 15 U .S.C. § 1681 v (full credit reports in international terrorism investigation s), and theref _ no payment should be made in connection with those NSLs. See EC , 3 l 9X-HO-A 148 -_ OGC, serial 222 , for a form letter to be sent in response to demands for payment conc ern = these NSLs. (U//FOUO) Compensation is legally required for NSLs issued pursuant to RFPA (fin an I records) and FCRA § 1681u (identity of financial institutions and consumer identi fying information). A fee schedule has been adopted under 12 C.F.R. § 219 .3, Appendix A an should be reviewed for the current reimbursement provisions . A copy of this fee schedu l _ available on the OGC website at: http://horne.fb inet. fbi/DO/OG C/Main%20Law %20Library /cost reimbursement guid an e. Version Dated: October 1:-,,2011 18-104 UNCLASSIFIED - FOR OFFICIAL USE ONLY --------- UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 8.6.7 (U) INVEST/GA TIVE METHOD: F/SA ORDER §18 FOR BUSINESS RECORDS ( COMPULSORY PROCESS) 8.6.7.1 (U) OVERVIEW OF COMPULSORY PROCESS · FO 0) Compulsory processes may be used to compel the disclosure of any tangible "'g (including books , records, papers, documents and other items) relevant to an authorized tigation to protect against international terrorism or clandestine intelligence activities. pul ory process in a Predicated Investigation includes, but is not limited to, the use of :A business records orders (described below in this section); administrative subpoenas G ection 18.6.4); grand jury subpoenas (DIOG Sections 18.6.5 and 18.5.9); trial enas requested by the prosecuting attorney and issued by the trial judge; and NSL OG ection 18.6.6). Compulsory process is used to gather information in furtherance of - I lil\·e tigations. The FBI's authority to use such compulsory process is based upon ive Branch delegated authorizations , statutes, regulations and the FRCP. An FBI CHS cannot be tasked to obtain records protected by the RFP A, FCRA, ECP A, y Amendment, except as specifically authorized by such law. .6.7.2 (U) APPLICATION OUO) FISA Business Records Orders may be used during authorized national security - ~=·igations. This method may not be used for assistance to other agencies, unless relevant .., already open FBI authorized investigation. When collecting positive foreign --~ .g nee, if the subject is a non-USPER, a request for business records pursuant to 50 _ : .C. 1861-63 is lawful. This method may not be used in an Assessment. 6. 7 .3 - 6.7.3. 1 (U) BUSINESS RECORDS UNDER FISA (U) LEGALAUTHORITY - C'.S.C. §§ 1861-63 .3.2 (U) DEFINITION OF METHOD order for business records , is an order for a third party to produce documents, - ·-. and other tangible things (including books , records, papers, documents, and other _ - r levant to an authorized national security investigation . A FISA order for business _._,.... -,......, - ma not be obtained during an Assessment. FISA business records orders may not be __ · obtai n information during a positive foreign intelligence investigation if the material lates to an USPER. - _ ~3 1 and DOI are addressing the issue of whether the Attorney General must approve any - · ormation obtained or derived from a FISA business records order in any criminal, · igration, military, or other proceeding , including any proceeding outside the United _- .-\!though there is no statutory requirement to obtain Attorney General authorization, ~3 1 and DOJ are working to determine whether, by policy, such authorization is required.) a i sue is addressed, FBI employees must consult with their CDC or an NSLB _. o determine whether advanced authorization of the Attorney General must be 18-105 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version ~kted: Ot.t Jt>r l S .w:l UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.6.7.3.3 (U) APPROVAL REQUIREMENTS (U//FOUO) All requests for FISA business records orders must be submitted throug h FISAMS to NSLB, which will draft the application. The request and the draft applic ati must then be submitted to the DOJ Office of Intelligence (OI) . Each request must inclu .. statement of the facts and circumstances relied upon by the applicant to establish that th records sought are relevant to an authorized investigation, and supporting the need for n disclosure, if non-disclosure is requested . Requests classified up to Secret must be subm-- . through FISAMS on FBINET. Requests classified Top Secret (TS) and/or Special Compartmentalized Information (SCI) must be submitted through FISAMS on SCIO F·e offices not having SCION access must prepare a paper copy of the request form , route i - appropriate signatures, and thereafter secure fax the request form to the FBIHQ operat io unit handling the request. The operational unit will enter the request into FISAMS on C In field offices not having SCION access, the SAC, CDC, and ASAC must sign the pap r copy of TS and/or SCI requests. T. (U//FOUO) The Director has delegated the authority to make an application for an orde r requiring the production of library circulation records, library patron lists, book sales reco book customer lists, firearms sales records, tax return records, educational records , or me records containing information that would identify a person, only to the Deputy Direct or r the Executive Assistant Director for National Security. 18.6.7.3.4 (U) DURATION OF COURTAPPROVAL (U) Authority for a FISA business records order is established by court order. 18.6.7.3.5 (U) NOTICEAND REPORTINGREQUIREMENTS (U) There are no special notice or reporting requirements. 18.6.7.3.6 (U) COMPLIANCEREQUIREMENTS (U) The employee who receives material produced in response to a FISA business record order must do the following: A) (U//FOUO) Handle the material as required by the Standard Minimization Procedures Adopted for Business Records Orders and any specialized minimization procedures requir by the Foreign Intelligence Surveillance Court (FISC) in connection with the particular ord for production. B) (U) See the current classified FISA Business Records standard minimization procedures: http://home.fbinet.fbi/DO/OGC/NSLB/Documents/business records minimization proced -. s.pdf. 18.6.7.3.7 (U) FISA OVERCOLLECTION (U//FOUO) In accordance with Foreign Intelligence Surveillance Court (FISC) Rule of Procedure 15, information acquired outside of the scope of the FISA authorization ("FISA overcollection") will no longer be sequestered with the FISC , absent extraordinary circumstances . Contact NSLB for further guidance regarding the handling of any FlSA overcollection. Vers10n Dated: October 15, 2011 18-106 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.8 §18 (U) INVESTIGATIVEMETHOD: STORED WIRE OR ELECTRONIC COMMUN/CATIONS AND TRANSACTIONALRECORDS 18.6.8.1 (U) SUMMARY (U//FOUO) FBI employees may acquire the contents of stored wire or electronic communications and associated transactional records - including basic subscriber information - as provided in 18 U.S.C. §§ 2701-2712 (Electronic Communications Privacy Act (ECPA)) . Requests for voluntary disclosure under the emergency authority of 18 U.S.C. § 2702 require prior approval from the field office ASAC or FBIHQ Section Chief when appropriate. (U//FOUO) All requests for information from electronic communication service providers (e.g., telephone companies , internet service providers) pertaining to a subscriber or customer must comply with ECP A. As used in ECP A, the term "information pertaining to a subscriber or customer" should be read broadly. It includes, for example, information regarding whether a particular individual has an account with a covered provider. Thus, unless done in accordance with ECP A, an FBI employee may not ask a telephone company or internet service provider whether John Smith has an account with the company (i.e., the FBI employee may not informally seek information that is statutorily protected prior to the issuance of appropriate process or the existence of an exception to ECP A). In addition, based on a November 5, 2008 interpretation ofECPA from the Office of Legal Counsel, the FBI may not ask a telephone company whether a given telephone number that the company services has been assigned to an individual. In short, in order to obtain any information specific to the subscriber from a telephone company or electronic communication service provider, the FBI must provide legal process pursuant to 18 U.S.C. §§ 2703 or 2709 or the request must fall with in the limited exceptions established in 18 U.S .C. § 2702, and discussed below . (U//FOUO) ECPA does not , however, protect information that is not tied to a particular subscriber. Thus , the FBI does not need legal process or an exception to ECP A to ask a telephone company whether it services a particular telephone number or to obtain blocks of telephone numbers that are serviced by the particular company. 18.6.8.2 (U) APPLICATION (U//FOUO) This investigative method may be used during national security Predicated Investigations and criminal Predicated Investigations as authorized by statute . The use of Search Warrants to obtain this information in Preliminary Investigations is prohibited. (See DIOG Section 18.6.8.4.2.3 below) This method may not be used for assistance to other agencies, unless the information to be obtained is relevant to an already open Predicated Investigation. This method cannot be used to collect positive foreign intelligence or during an Assessment. 18.6.8.2.1 (U) STORED DATA (U) The Electronic Communications Privacy Act (ECPA) - 18 U.S.C. §§ 2701-2712 governs the disclosure of two broad categories of information: (i) the contents of wire or 18-107 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide electronic communications held in "electronic storage" by providers of "electronic communication service" or contents held by those who provide "remote computing ern "' to the public; and (ii) records or other information pertaining to a subscriber to or cust om such services. The category of "records or other information" can be subdivided further i subscriber records (listed in 18 U.S.C. § 2703(c)(2)) and stored traffic data or other recor (U) Records covered by ECP A include all records that are related to the subscriber inclu · buddy lists, "friend" lists (MySpace), and virtual property owned (Second Life). These o "'~ sorts of records are not subscriber records and cannot be obtained with a subpoena unde r U.S.C. § 2703(c)(2) or an NSL under 18 U.S.C. § 2709. 18.6.8.2.2 (U) LEGALPROCESS (U)The legal process for obtaining disclosure will vary depending on the type of informa sought and whether the information is being voluntarily provided under 18 U.S.C. § 270_ (e.g., with consent or when emergency circumstances require disclosure) or the provider ibeing compelled to provide the information under 18 U.S.C. § 2703, as outlined below . Th process for compelling production under 18 U.S.C. § 2709 is discussed in the NSL secti on above. 18.6.8.2.3 (U) RETRIEVAL (U) Contents held in "electronic storage" by a provider of "electronic communication sef\"i for 180 days or less can only be obtained with a search warrant based on probable cause. Accordingly , such records may only be obtained during a Full Investigation. (U) Contents held by those who provide "remote computing service" to the public and contents held in "electronic storage" for more than 180 days by an "electro nic communic a service" provider can be obtained with: a warrant; a subpoena with prior notice to the subscriber or customer; or an order issued by a court under 18 U.S.C. § 2703(d) when pri or notice has been provided to the customer or subscriber (unless the court has authorized delayed notice). (U) Title 18 U.S.C. § 2705 establishes the standard to delay notice for an initial period of u to 90 days. Records or other information pertaining to a subscriber to or customer of such services, including basic subscriber information, can be obtained with a search warrant or an 18 U.S.C. § 2703( d) order without notice. 18.6.8.2.4 (U) BASIC SUBSCRIBERINFORMATION (U) Basic subscriber information, as described in 18 U.S.C. § 2703(c)(2), can be compelled by a grand jury or administrative subpoena without notice. 18.6.8.2.5 (U) PRESERVATIONOFSTORED DATA (U) The government is authorized under 18 U.S.C. § 2703(f) to direct a provider to preserve records or other information (stored records or communications) in its possession for 90 day(which may be extended for an additional 90-days) pending issuance of applicable legal Version Dated: October 15, 2011 18-108 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 process for disclosure . To make a preservation request , the FBI must believe that the records will subsequently be sought by appropriate legal process. 18.6.8.2.6 (U) COST REIMBURSEMENT (U) 18 U.S.C. § 2706 requires the government to reimburse for costs incurred in providing the contents of communications, records , or other information obtained under 18 U.S .C. §§ 2702, 2703 , or 2704 , except that reimbursement is not required for records or other information maintained by a communications common carrier that relate to telephone toll records and telephone listings obtained under 18 U .S.C. § 2703. In essence , the government does not have to reimburse for the cost of producing records that the provider maintains in the ordinary course of its business. 18.6.8.3 (U) LEGAL AUTHORITY (U) 18 U.S .C. §§ 2701-2712 (U) AGG-Dom , Part V .9 (U) ECPA - 18 U.S .C. §§ 2701-2712 - creates statutory privacy rights for the contents of communications in "electronic storage" and records or other information pertain ing to a subscriber to or customer of an "electronic communication service " and a "remote computing serv ice. " The statutory protections protect the privacy of an individual ' s electronic data contained in a networked account - that may otherwise fall outside the scope of the pro tections afforded by the Fourth Amendment - when such account or its service is owned or managed by a third-party provider. (U) ECP A generally : (i) prohibits access to the contents of wire or electronic communications while in "electronic storage " unless authorized (18 U.S.C. § 2701 ); (ii) prohibits a provider of erv ice to the public from disclosing the contents of wire or electronic communications while held in "electronic storage ," and prohibits divulging to the government any information pert aining to a subscriber to or customer of such service unless authorized (18 U.S .C . § 2702) ; and (iii) authorizes the government to compel disclosure from a provider of stored contents of a wire or electronic communication and records or other information pertaining to a ubscriber to or customer (18 U.S.C . § 2703). ECPA provides for reimbursement of costs incurred in providing the information acquired. ( ) An FBI CHS cannot be tasked to obtain records protected by ECP A except as specifically auth orized by such law . 18.6.8.4 (U) ECPA DISCLOSURES C" EC P A authorities can be divided into two categories : (i) compelled disclosure - legal rocess to compel provider s to disclose the contents of stored wire or electronic omm unications (including e-mail and voice mail- opened and unopened) and other information, such as account records and basic subscriber information ; and (ii) voluntary i closure of such information from service providers. Each of these authorities is discussed low. 18-109 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver<;101 D.ited O.:tob r 1 5, 20 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.6.8.4.1 [U) DEFINITIONS A) (U) Electronic Storage: is "any temporary , intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof ," or "any storage of such communication by an electronic communication service for purposes of backup protection of such communication." 18 U.S.C. § 2510(17). In short , "electronic storage" refers only to temporary storage, made in the course of transmission , by a provider of an electronic communication service . B) (U) Remote Computing Service (RCS): is a service that provides "to the public " computer storage or processing services by means of an electronic communications system. 18 U.S.C. § 2711(2). In essence , a remote computing service is an off-site computer that stores or processes data for a customer. C) (U) Electronic Communications System: is "any wire , radio , electromagnetic , photooptical or photoelectronic facilities for the transmission of wire or electronic communications , and any computer facilities or related electronic equipment for the electronic storage of such communications ." 18 U.S .C. § 2510(14). D) (U) Electronic Communication Service (ECS): is "any service that provides to users thereof the ability to send or receive wire or electronic communications ." 18 U.S .C. § 2510(15) . For example, telephone companies and electronic mail companies generally act as providers of electronic communication service s. 18.6.8.4.2 (U) COMPELLED DISCLOSURE (U) 18 U.S.C. § 2703 lists five types oflegal process that the government can use to compel a provider to disclose certain kinds of information. The five mechanisms , in descending order of required threshold showing are as follows : A) (U) Search warrant; B) (U) 18 U.S.C. § 2703( d) court order with prior notice to the subscribe r or customer ; C) (U) 18 U.S .C. § 2703(d) court order without prior notice to the subscriber or customer ; D) (U) Subpoena with prior notice to the subscriber or customer ; and E) (U) Subpoena without prior notice to the subscriber or customer. (U) Generally , anything that can be obtained under ECPA with greater process includes access to information that can be obtained with lesser process . Thus , a search warrant can compel the production of everything that an 18 U.S .C. § 2703(d) order can compel (and then some) , and an 18 U.S.C . § 2703(d) court order can compel everything that a subpoena can compel (plus additional information) . The notice requirement , however , must be considered as a separate burden under this analysis : a subpoena with notice to the subscriber can be used to compel information not available using an 18 U.S .C. § 2703( d) order without subscriber notice. (U) Note for Telemarketing Fraud: When investigating telemarketing fraud , law enforcement may make a written request to the service provider to obtain the name , address , and place of business of a subscriber or customer engaged in telemarketing. See 18 U.S .C. § 2703(c)(l)(D). These requests do not require notice to the customer. 18-110 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 - - ---- - ---~--- UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.8.4.2.1 (U//FOUO) NOTICE-ORDERS §18 NOT TO DISCLOSE THE EXISTENCE OF A WARRANT, SUBPOENA, OR COURT ORDER (U//FOUO) FBI employees may obtain a court order directing network service providers not to disclose the existence of compelled process if the government has no legal duty to notify the customer or subscriber of the process. If an 18 U.S.C. § 2703( d) order or 18 U.S.C. § 2703(a) warrant is being used, a request for a non-disclosure order can be included in the application and proposed order or warrant. If a subpoena is being used to obtain the information, a separate application to a court for a non-disclosure order must be made. 18.6.8.4.2.2 (U) LEGAL STANDARD (U//FOUO) A court may order an electronic communications service provider or remote computing service not to disclose the existence of a warrant, subpoena, or court order for such period as the court deems appropriate. The court must enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in: A) (U) Endangering the life or physical safety of an individual; B) (U) Flight from prosecution; C) (U) Destruction of or tampering with evidence; D) (U) Intimidation of potential witnesses; or E) (U) Otherwise seriously jeopardizing an investigation or unduly delaying a trial. 18 U.S.C. § 2705(b). 18.6.8.4.2.3 (U) SEARCH WARRANT (U//FOUO) Investigators can obtain the full contents of a network account with a search warrant issued pursuant to FRCP Rule 41. However, FRCP Rule 41 search warrant may not be issued in Preliminary Investigations. See DIOG Section 18.7.1.3.4.4. 18.6.8.4.2.4 (U) COURT ORDER WITH PRIOR NOTICE TO THE SUBSCRIBER OR CUSTOMER (U//FOUO) Investigators can obtain everything in a network account except for unopened e-mail or voice-mail stored with a provider for 180 days or less using a 18 U.S.C. § 2703(d) court order with prior notice to the subscriber unless they have obtained authority for delayed notice pursuant to 18 U.S.C. § 2705. ECPA distinguishes between the contents of communications that are in "electronic storage" (e.g., unopened e-mail) for less than 180 days, and those that have been in "electronic storage" for longer or that are no longer in "electronic storage" (e.g., opened e-mail). (U) FBI employees who obtain a court order under 18 U.S.C. § 2703(d), and either give prior notice to the subscriber or comply with the delayed notice provisions of 18 U.S .C. § 2705(a), may obtain: 18-111 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 A) (U) "The contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days." 18 U.S.C. § 2703(a). B) (U) "The contents of any wire or electronic communication" held by a provider of remote computing service "on behalf of ... a subscriber or customer of such remote computing service," 18 U.S.C. §§ 2703(b )(1 )(B)(ii), 2703 (b )(2); and C) (U) Everything that can be obtained using a 18 U.S.C. § 2703(d) court order without notice. (U) As a practical matter, this means that the government can obtain all associated subscriber and transactional records and the full contents of a subscriber's account except unopened e-mail and voicemail (that has been in "electronic storage" 180 days or less) using a 18 U.S.C. § 2703( d) order that complies with the prior notice provisions of 18 U.S.C. § 2703(b)(l)(B). (U) If notice would jeopardize the investigation, FBI employees can obtain an order delaying notice for up to ninety days. See 18 U.S.C. § 2705(a). A request to delay notice may be included in the 18 U.S.C. § 2703(d) application and proposed order. FBI employees may also apply to the court for extensions of the delay. See 18 U.S.C. §§ 2705(a)(l )(A) and 2705(a)(4). Upon expiration of the delayed notice period, the government is required to send a copy of the request or process along with a letter explaining the delayed notice to the customer or subscriber. See 18 U.S.C. § 2705(a)(5). 18. 6.8.4.2.4.1 (U) LEGAL STANDARD (U) To order delayed notice, the court must find that "there is reason to believe that notification of the existence of the court order may ... endanger the life or physical safety of an individual; [lead to] flight from prosecution; [lead to] destruction of or tampering with evidence; [lead to] intimidation of potential witnesses; or ... otherwise seriously jeopardiz[e] an investigation or unduly delay[] a trial." 18 U.S.C. §§ 2705(a)(l)(A) and 2705(a)(2). The applicant must satisfy this standard anew each time an extension of the delayed notice is sought. 18. 6.8.4.2.4.2 (U) NATIONWIDE SCOPE (U) Federal court orders under 18 U.S.C. § 2703(d) have effect outside the district of th issuing court. Orders issued pursuant to 18 U .S.C. § 2703( d) may compel providers to disclose information even if the information is stored outside the district of the issuing court. See 18 U.S.C. § 2703(d) ("any court that is a court of competent jurisdiction" m. issue a 18 U.S.C. § 2703(d) order); 18 U.S.C. § 2711(3) (court of competentjurisdict i includes any federal court having jurisdiction over the offense being investigated with geographic limitation). (U) 18 U.S.C. § 2703(d) orders may also be issued by state courts. See 18 U.S.C. 2711(3), 3127(2)(B). These orders issued by state courts, however, do not have effect outside the jurisdiction of the issuing state. See 18 U.S.C. §§ 2711 (3). Version Dated: October 15, 2011 18-112 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.8.4.2.5 §18 (U) COURT ORDER WITHOUT PRIOR NOTICE TO THE SUBSCRIBER OR CUSTOMER (U) A court order under 18 U.S.C . § 2703(d) may compel disclosure of: A) (U) All "record(s) or other information pertaining to a subscriber to or customer of such service (not including the contents of communications [held by providers of electronic communications service and remote computing service]) ," and B) (U) Basic subscriber information that can be obtained using a subpoena without notice . 18 U.S .C. § 2703(c)(l). 18. 6.8.4.2.5.1 (U) TYPES OF TRA NSACTIONAL RECORDS (U) The broad category of transactional records includes all records held by a service provider that pertain to the subscriber beyond the specific records listed in 2703( c)(2) such as a list of "friends " as used in social networking sites and virtual property owned as used in virtual worlds. (U//FOUO) Non-content cellular location information falls into one of two general categories: (i) cell site and sector information ; or (ii) other provider-assisted geo-location information. FBI employees must contact the CDC and/or the AUSA assigned to the investigation to determine what legal process may be required as court decisions in the federal districts and circuits vary on this issue. 18.6.8.4.2.5.2 (U) CELL SITE AND SECTOR lNFORMA TION (U) Cell site and sector information is considered "a record or other information pertaining to a subscriber " and therefore , production of historical and prospective cell site and sector information may be compelled by a court order under 18 U.S.C. § 2703( d). Requests made pursuant to 18 U.S.C. § 2703(d) for disclosure of prospective cell site and sector information - which is delivered to law enforcement under Communications Assistance for Law Enforcement Act (CALEA) at the beginning and end of calls- must be combined with an application for pen register /trap and trace device . Some judicial districts will require a showing of probable cause before authorizing the disclosure of prospective cell site and sector information. 18. 6.8.4.2. 5.3 (U) OTHER GEO-LOCATION lNFORMA TION A VAJLABLE TO THE PROVIDER (U) Geo-location data that is distinct from cell site (towe r/sector) data has been developed by carriers , in part , to deliver certain location data for 911 calls and is implemented either through network-based or handset-based means. It is important to note that only some of the cellular providers currently have the capability to make this data available to law enforcement. Each of these location methods differs materially from the tower /sector information that is used by the provider's network in the normal provisioning of service and that CALEA requires the provider to be able to deliver to law enforcement. Handset-based methods typically involve the use of GPS technology in which the data resides on the phone itself. Network-based methods measure the radio 18-113 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 frequency signals that are being transmitted from the user's phone handset during registration and/or call processing to at least one tower receiving the signal. (U//FOUO) In the ordinary course of providing service to the customer, the provider doe not typically use this GPS location data. Accordingly, the data may not constitute a "record or other information" in the provider's custody within the meaning of 18 U.S.C. §§ 2702 and 2703. Consequently, a FRCP Rule 41 search warrant should be obtained to compel the disclosure of such provider-assisted geo-location data. The order should: (i) be obtained in the district where the phone is located (as determined by tower data, visua surveillance, or CHS reporting); (2) seek permission to execute outside of daytime hour . (3) request disclosure for no longer than 30 days; and (4) request delayed notice under 1 U.S.C. § 3103a(b) for 30 days with notice ultimately given to the customer or subscribe r. The return should note "the exact date and time the device was installed and the period during which it was used"-i.e ., it should conform to the FRCP Rule 41 tracking device rule (which does not, by its terms, apply but which is analogous), and the return should be made within 10 calendar days after use ends. (U) Recognized exceptions to the warrant requirement may, however, apply in certain situations . For example, if cellular geo-location data is requested from a provider in an "exigent circumstance" based on an objectively reasonable basis to believe that the requested information is relevant to an emergency involving danger of death or seriou physical injury, such disclosure would arguably be permissible either under 18 U.S.C. 2702(c)(4)-to the extent ECPA applies- or under the exigent circumstances excepti on to the warrant requirement (if a warrant were required). (U) This standard only applies to stored information. For prospective information, DOJ recommends an emergency PR/TT order and an 18 U.S.C. § 2703(d) order should also obtained when judicial approval is sought according to the PRITT statute. 18.6.8.4.2.5.4 (U) LEGAL STANDARD (U) A court order under 18 U.S.C. § 2703(d) is known as an "articulable facts" court order or simply a "d" order. This section imposes an intermediate standard to protect online transactional records. It is a standard higher than a subpoena, but not a probable cause warrant. (U) In applying for an order pursuant to 18 U.S .C. § 2703 (d), the FBI must state sufficient specific and articulable facts for the court to find that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the recor or other information sought, are relevant and material to an ongoing criminal investigation. As a practical matter, a short factual summary of the investigation and th role that the records will serve in advancing the investigation should satisfy this standar 18.6.8 .4.2.6 (U) SUBPOENA WITH PRIOR NOTICE TO THE SUBSCRIBER OR CUSTO . 1£ (U//FOUO) Investigators can subpoena opened e-mail from a provider if they give prior notice to the subscriber or comply with the delayed notice provisions of 18 U.S.C. Version Dated October 15, 2011 18-114 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 2705(a) - which requires a written certification by the SAC or ASAC that there is reason to believe notification of the existence of the subpoena may have an adverse result. (U) FBI employees who obtain a subpoena and give prior notice to the subscriber or comply with the delayed notice provisions of 18 U.S.C. § 2705(a) may obtain: A) (U) "The contents of any wire or electronic communication" held by a provider of remote computing service "on behalf of ... a subscriber or customer of such remote computing service." 18 U.S.C. § 2703(b)( 1)(B)(i), § 2703(b)(2); B) (U) "The contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days." 18 U.S.C. § 2703(a); and C) (U) Basic subscriber information listed in 18 U.S.C. § 2703(c)(2). (U) As a practical matter, this means that FBI employees can obtain opened e-mail (and other "unopened" stored wire or electronic communications in "electronic storage" more than 180 days) using a subpoena, so long as they provide prior notice to the subscriber or comply with the delayed notice provisions . (U) Notice: Prior notice of the subpoena must be provided unless a supervisory official has certified in writing that there is reason to believe that notification of the existence of the subpoena may have an adverse result, 18 U.S.C. § 2705(a)(l)(B) and 18 U.S.C. § 2705(a)(4)(authorizing 90-day extensions), in which case notice may be delayed for up to 90 days. The term "supervisory official" is defined to mean the SAC or ASAC or an equivalent level officiaJ at headquarters. 18 U.S.C. § 2705(a)(6). Upon expiration of the delayed notice period, the government is required to send a copy of the request or process along with a letter explaining the delayed notice to the customer or subscriber. See 18 U.S.C. § 2705(a)(5). This documentation must be placed with the subpoena in the appropriate investigative file. (U) Legal standards for delaying notice: The supervisory official must certify in writing that "there is reason to believe that notification of the existence of the court order may ... endanger[] the life or physical safety of an individual; [lead to] flight from prosecution; [lead to] destruction of or tampering with evidence; [lead to] intimidation of potential witnesses; or. .. otherwise seriously jeopardiz[e] an investigation or unduly delay[] a trial." 18 U.S.C. §§ 2705(a)(l)(A), 2705(a)(2). This standard must be satisfied anew every time an extension of the delayed notice is sought. This documentation must be placed with the subpoena in the appropriate investigative file. 18.6.8.4.2.7 (U) SUBPOENA WITHOUT PRIOR NOTICE TO THE SUBSCRIBER OR CUSTOMER (U//FOUO) Without notice to the subscriber or customer, investigators can subpoena basic subscriber information: (U) name; address; local and long distance telephone connection records, or records of session times and durations; length of service (including start date) and types of service used; telephone or instrument number or other subscriber number or identity, including 18-115 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 any temporarily assigned network address; and means and source of payment for such service (including any credit card or bank account number)[.]" 18 U.S.C. § 2703(c)(2). (U) These items typically relate to the identity of a subscriber, his or her relationship w the service provider , and basic session connection records. This list does not include other, more extensive transaction-related records, such as logging information reveal ing the e-mail addresses of persons with whom a customer corresponded during a prior session. In the Internet context, "records of session times and durations," as well as "an _ temporarily assigned network address" include the IP address assigned by an Internet service provider to a customer for a particular session. They also include other information relating to account access, such as the originating telephone number for dia up Internet access or the IP address of a user accessing an account over the Internet. e PATRIOT Act§ 210 , 115 Stat. 272, 283 (2001). A) (U) Legal Standard: The legal threshold for issuing a subpoena is relevance to the investigation. Courts are reluctant to review the "good faith" issuance of subpoenas as long as they satisfy the following factors 17 : (i) the investigation is conducted pursuant to a legitimat purpose ; (ii) the information requested under the subpoena is relevant to that purpose ; (iii) th agency does not already have the information it is seeking with the subpoena ; and (iv) the agency has followed the necessary administrative steps in issuing the subpoena. (U//FOUO) In the event that a federal grand jury subpoena is used, however, appropriate protections against disclosure must be followed in compliance with FRCP Rule 6(e). B) (U//FOUO) Fugitive Investigations: It is a misuse of the grand jury to use the grand jury a investigative aid in the search for a fugitive in whose testimony the grand jury has no intere Therefore, grand jury subpoenas for telephone billing records .should not be requested in federal fugitive investigations. (See DIOG Section 18.6.5.1 for limited situations in which courts have recognized when grand jury efforts to locate a fugitive are proper.) C) (U) Members o(the News Media: Approval of the Attorney general must be obtained prior r seeking telephone billing records of a member of the news media. (See DIOG Section 18.6.5.1.5) 18.6.8.4.3 (U) VOLUNTARY DISCLOSURE (U) In order to determine whether a provider of an Electronic Communication Service (ECS or a Remote Computing Service (RCS) can voluntarily disclose contents or records, it mus t first be determined whether the relevant service is offered by the provider to the public. A) (U) Service NOT Available to the Public: ECPA does not apply to providers of services that are not available "to the public ;" accordingly such providers may freely disclose both conten and other records relating to stored communications. Andersen Consulting v. UOP , 991 F. Supp. 1041 (N.D. Ill. 1998) (giving hired consulting firm employees access to UOP's e-mail system is not equivalent to providing e-mail to the public). B) (U) Services That ARE Available to the Public: If the provider offers services to the public , then ECPA governs the disclosure of contents and other records. 17 (U) United States v. Morton Salt Co.. 338 U.S. 632. 642-43 (1950) . Vers10n Dated· October 15, 2011 UNCLASSIFIED 18-116 - FOR OFFICIAL USE ONLY r UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 C) (U) If the provider is authorized to disclose the information to the government under 18 U.S.C. § 2702 and is willing to do so voluntarily, law enforcement does not need to obtain a legal order or provide other legal process to compel the disclosure. D) (U) If a provider voluntarily discloses under the statute, there is no follow-up legal process required or available. If the provider, on the other hand, either may not or will not disclose the information voluntarily, FBI employees must rely on compelled disclosure provisions and obtain the appropriate legal orders. 1) (U) Voluntary Disclosure of Stored Contents - ECPA authorizes the voluntary disclosure of stored contents when: a) (U) The originator, addressee, intended recipient, or the subscriber (in the case of opened e-mail) expressly or impliedly consents, 18 U.S.C. § 2702(b)(3); b) (U) The disclosure "may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service," 18 U.S.C. § 2702(b)(5); c) (U) The provider "in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency," 18 U.S.C. § 2702(b )(8); d) (U//FOUO) An emergency disclosure under this statutory exception is justified when the circumstances demand action without delay to prevent death or serious bodily injury; the statute does not depend on the immediacy of the risk of danger itself. For example, an e-mail that discusses a planned terrorist attack but not the timing of the attack would constitute an emergency that threatens life or limb and requires action without delay , even though the timing of the attack is unknown. It is the need for action without delay to prevent the serious harm threatened rather than the immediacy of the threat itself that provides the justification for voluntary disclosures under this exception. H.R Rep. No. 107-497 at 13-14 (2002) accompanying The Cyber Security Enhancement Act of 2002, H.R. 3482, which passed as part of the comprehensive Homeland Security Act of 2002, Pub. L. No. 107-296, § 225 116 Stat. 2135 (2002). e) (U) The disclosure is made to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under Section 227 of the Victims of Child Abuse Act of 1990. (42 U.S.C. § 13032 and 18 U.S.C. § 2702[b][6]); or f) (U) The contents are inadvertently obtained by the service provider and appear to pertain to the commission of a crime. Such disclosures can only be made to a law enforcement agency. 18 U.S.C. § 2702(b )(7) 2) (U) Voluntary Disclosure of Non-Content Customer Records - ECPA permits a provider to voluntarily disclose non-content customer records to the government when: a) (U) The customer or subscriber expressly or impliedly consents , 18 U.S.C . § 2702(c)(2); b) (U) The disclosure "may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service," 18 U.S.C. § 2702( c)(3); c) (U) The provider "in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency ," 18 U.S .C. § 2702(c)(4); or 18-117 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 d) (U//FOUO) Note: An emergency disclosure under this statutory exception is justified when the circumstances demand immediate action (i.e., obtaining/disclosing information "without delay") to prevent death or serious bodily injury; the statute doe not depend on the immediacy of the risk of danger itself. For example, an e-mail that discusses a planned terrorist attack but not the timing of the attack would constitute an emergency that threatens life or limb and requires immediate action, even though the timing of the attack is unknown. It is the need for immediate action to prevent the serious harm threatened rather than the immediacy of the threat itself that provides the justification for voluntary disclosures under this exception. H.R Rep. No. 107-497 at 13-14 (2002) accompanying The Cyber Security Enhancement Act of 2002, H.R. 34 which passed as part of the comprehensive Homeland Security Act of 2002, Pub . L. ·o 107-296, § 225 116 Stat. 2135 (2002). e) (U) The disclosure is to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under Section 227 of the Victims of Child Abuse Act of 1990. (42 U.S.C. § 13032 and 18 U.S.C. § 2702[c](5]) 3) (U) Preservation of Evidence under 18 U .S.C. § 2703(f) - FBI employees may direct providers to preserve existing records pending the issuance of compulsory legal proces . Such requests, however , have no prospective effect. a) (U) Because there is generally no law regulating how long a network service provide r must retain account records, there is a risk that evidence might be destroyed or lost in the normal course of the provider's business before law enforcement can obtain lega l process to compel disclosure. A governmental entity is authorized to direct provider · preserve stored records and communications pursuant to 18 U.S.C. § 2703(f). Once a preservation request is made, ECP A requires that the provider must retain the recor ds for 90 days , renewable for another 90-day period upon a government request. See 1 U.S.C. § 2703 (f)(2). b) (U) There is no legally prescribed format for 18 U.S.C. § 2703(f) requests. While a phone call should be adequate, a facsimile or an e-mail is better practice because it provides a paper record and guards against miscommunication. c) (U) FBI employees who send 18 U.S.C. § 2703(f) letters to network service provide _ should be aware of two limitations. First, the authority to direct providers to preser. e records and other evidence is not prospective. Thus, 18 U.S.C. § 2703(f) letters can order a provider to preserve records that have already been created but cannot order providers to preserve records not yet made. If FBI employees want providers to recoru information about future electronic communications, they must comply with the electronic surveillance statutes. A second limitation of 18 U.S.C. § 2703(f) is that o providers may be unable to comply effectively with 18 U.S .C. § 2703(f) requests without having an unintended adverse impact on the investigation. Effective communication with the provider about the practical impact and limitations of implementing the preservation request will enable the FBI employee to make an informed decision regarding preservation. 4) (U) Video Tape Rental or Sales Records - 18 U.S.C. § 2710 makes the unauthorized disclosure ofrecords by any person engaged in the rental, sale, or delivery of prerecor d video cassette tapes or similar audiovisual materials unlawful and provides an exclus io rule to prohibit personally identifiable information otherwise obtained from being admissible as evidence in any court proceeding. Personally identifiable information i defined as "information that identifies a person as having requested or obtained speci fi video material or services .... " Version Dated: October 15, 2011 18-118 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 a) (U) The disclosure to law enforcement of "personally identifiable information" is permitted only when the law enforcement agency : (i) (ii) (U) Has the written consent of the customer ; (U) Obtains a search warrant issued under Rule 41, FRCP or equivalent state warrant; or (iii) (U) Serves a grand jury subpoena ; b) (U) The disclosure to law enforcement of the name and address of a customer of a video tape service provider may be made without compulsory process when: the information being sought does not identify the customer as having requested or obtained specific video materials or service , and if the customer had prior opportunity to prohibit such disclosure. c) (U) This type of information was specifically not included in the definition of "personally identifiable information" to allow law enforcement to obtain information about individuals during routine investigations such as neighborhood investigations. d) (U//F OUO) The disclosure of "personally identifiable information" in a national security investigation may be compelled through use of the above legal processes or pursuant to a business records order issued under 50 U.S.C. § 1861. 18.6.8.5 18.6.8.5.1 (U) VOL{JNTARYEMERGENCYDISCLOSURE {U) SCOPE (U//F OUO) ECPA protects subscriber and transactional information regarding communications from disclosure by providers of remote computing services or telephone or other electronic communication services to the public (remote computing services, telephone and other electronic communications services are hereafter collectively referred to as ..electronic communications service providers" or "providers"). Generally, an NSL, grand jury ubpoena , or other form of legal process must be used to compel the communication service prov ider to disclose such information . Pursuant to 18 U.S .C. § 2702, however, an electronic communications service provider may voluntarily disclose customer records or the stored contents of communications to the FBI if the service provider believes in good faith that an emergency exits involving danger of death or serious physical injury to any person which r quires disclosure of such information without delay. The information necessary to satisfy the emergency disclosure standard may be provided by the FBI or may arise from information the electronic communications service provider independently acquires. No matter how the information is acquired, the statutory provision does not provide authority for the FBI to ~ompel disclosure from the provider. Nor does the statute require any follow up legal process e.g., a subpoena or NSL , etc.) if an emergency disclosure is made. l: OUO) The FD-1053 must be used when requesting emergency voluntary disclosures - om an electronic communications service provider. The form will automatically generate a ner which must be signed and furnished to the provider. If time does not permit the issuance + an emergency letter , an oral request may be made , but the oral request must be followed-up ith a request letter. The request letter informs the provider that further legal process is not - uired and will not be forthcoming. 18-119 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 1 5, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) The FD-1053 must also be used in those circumstances when the electronic communications service provider voluntarily discloses such information without a request from the FBI. In these circumstances, the FD-1053 will not generate a request letter, but it will facilitate other required record keeping, as discussed below. (U//FOUO) In either situation, the FD-1053 (and a copy of the signed request letter, if one is generated and provided to the electronic communications service provider) must be serialized in the investigative file, including the hardcopy file. (U//FOUO) The use of the FD-1053 form is designed to captures all the information the FBI needs to satisfy statutory annual Congressional reporting requirements . (U//FOUO) If the employee provides the FD-1053 letter to an electronic communications service provider and the provider instead insists that the employee use the provider's standard form letter, the employee should contact his/her CDC or OGC immediately ; often times, the provider's forms contain language representing that some type of legal process will be furnished subsequently. In such situations, if obtaining CDC or OGC guidance is not feasible under the emergency circumstances , the employee must strike out any language referencing future legal process (e.g., NSL or subpoena) from the provider's standard form and hand-write on the provider's standard form language that makes clear the information is being provided voluntarily pursuant to the ECPA and that legal process will not be provided. With such edits (if necessary) the provider's revised form may be used and a copy must be maintained in the investigative file. If the electronic communications service provider will not permit such a change to its standardized letter, the provider ' s letter may be used. The employee must document in an EC to the investigative file, as soon as practicable but no later than five (5) business days after the emergency disclosure is made, the name, title, and contact information of the provider's employee who refused to modify the letter and such employee's reason for refusing to accept the FD-1053. A copy of the EC must be sent to the CDC and the Deputy General Counsel of the National Security Law Branch or the Investigative Law Branch as determined by the type of investigation. The employee must also prepare the FD-1053 in the database for reporting purposes but does not need to generate the request letter. 18.6.8.5.2 (U) DURA TJON OF APPROVAL (U) As authorized by statute (e.g., for as long as the emergency necessitating usage exists and only in those circumstances when it is impracticable to obtain other legal process such as a subpoena or NSL) and applicable court order or warrant. 18.6.8.5.3 (U) SPECIFIC PROCEDURES A) (U//FOUO) Required Form: An FD-1053 Form must be used by all employees to document requests for emergency voluntary disclosures of information. The FD-1053 Form will automatically generate a letter which the FBI can furnish to the particular electronic communications service provider. The FD-1053 Form must also be used to document those instances when a provider independently discloses emergency information without an initial request from the FBI. In such a situation , the FD-1053 system wi II not generate, and the FBI need not send , an emergency voluntary disclosure letter to the provider. Verswn Dated: October 15, 2011 18-120 UNCLASSIFIED - FOR OFFICIAL USE ONLY -- ~------ - - UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 B) (U//FOUO) Filing requirements: A copy of each document used to obtain disclosure of information pursuant to the authorities under ECPA, e.g., the FD-1053 Form, the emergency disclosure letter or the electronic communications service provider's standardized form, must be serialized in the investigative file, along with documentation of any information obtained in response to the request. C) (U//FOUO) Contact with Providers: TT As have primary responsibility for liaison with a provider's legal compliance staff and are, therefore, typically familiar with procedural requirements of the various providers. FBI employees should contact the TT A and the CDC or OGC for guidance and with questions relative to process and procedures for serving compulsory process or requesting voluntary disclosures. 18.6.8.5.4 (U) COST REIMBURSEMENT (U) Policy and procedures regarding cost reimbursement are described in the following: A) (U) Standardized payment procedures may be found at http: //home.fbinet.fbi/DO /OGC/Main%20Law %20Library /Forms /ILU%20Library.aspx B) (U) Cost Reimbursement Guidance can also be found in 18 U.S.C. § 2706 http: //home.fbinet.fbi/DO /OGC/Main %20Law %20Library /cost reimbursement guidance.pdf 18.6.8.5.5 (U) NOTICE 18.6.8.5.6 (U) REPORTING AND REPORTING REQUIREMENTS VOLUNTARY EMERGENCY DISCLOSURES U) 18 U.S.C. § 2702(d) requires the Attorney General to report annually to Congress informa tion pertaining to the receipt of voluntary disclosures of the contents of stored wire or electro nic communications in an emergency under 18 U.S.C. § 2702(b )(8), specifically: A) (U) The number of accounts from which the FBI received voluntary emergency disclosures; and B) (U) A summary of the basis for the emergency disclosure in those investigations that were closed without the filing of criminal charges. "C"The FD-1053 Form will capture information required to meet these reporting requirement. 18.6.8.5.7 (U) ROLES/RESPONSIBILITIES C The FD-1053 database system that hosts the FD-1053 form will, when necessary, followwith e-mail notifications to the issuing employee to ensure that the information included in report to DOJ (which it uses to prepare the required Congressional report) is current. It is re ponsibility of the FBI employee to respond to these requests for information as soon as ticable but no later than ten (10) business days. Failure to do so may be considered tantial non-compliance" pursuant to Section 3. · OGC /ILB is assigned the administrative De mber 31 of each year: responsibility to complete the following by A (U) Tabulate the number of voluntary disclosures of stored contents received under the authority of 18 U.S.C. § 2702(b )(8) for the calendar year; UNCLASSIFIED ---- 18-121 - FOR OFFICIAL USE ONLY ------- Version Dated: Oltober lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 B) (U) Prepare a report summarizing the basis for disclosure in those instances in which the relevant investigation was closed without the filing of criminal charges; and C) (U) Submit the report to the General Counsel for review and submission to DOI according to the statutory requirement for annual report by the Attorney General. 18.6.8.6 (U) OTHER APPLICABLE POLICIES (U) See the Stored Communications Quick Reference Guide 5/1/2008 Version Dated: October 15, 2011 18-122 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18. 6. 9 18.6.9.1 (U) INVEST/GA TIVE METHOD: (PR/TT) §18 PEN REGISTERS AND TRAP /TRACE D EVICES (U) SUMMARY (U) Pen register and trap and trace (PRITT) devices enable the prospective collection of noncontent traffic information associated with wire and electronic communications, such as: the phone numbers dialed from or to a particular telephone, including electronic communications; messages sent from or to a particular telephone; or the internet protocol (IP) address of communications on the Internet and other computer networks. 18.6.9.2 (U) APPLICATION (U//FOUO) The PRITT may be used in Preliminary and Full (national security and criminal) Investigations. This method may not be used: (i) for targeting an USPER when providing assistance to other agencies, unless there is already an open FBI Preliminary or Full Investigation related to the request for assistance or the predicate exists to open a Preliminary or Full Investigation; (ii) for targeting an USPER when collecting against a foreign intelligence requirement; or (iii) during an Assessment. 18.6.9.3 (U) LEGAL AUTHORITY (U) 18 U.S.C . §§ 3121 et seq. and 50 U.S.C. §§ 1842 et seq. regulate the use of PRITT devices. PRITT orders authorize the collection of phone number dialed from or to a particular telephone, IP addresses , port numbers and the "To" and "From" information from e-mail; they cannot intercept the content of a communication, such as telephone conversations or the words in the "subject line" or the body of an e-mail. 18.6.9.4 (U) DEFINITION OF INVESTIGATIVE METHOD ( ) A pen register device or process records or decodes dialing, routing, addressing or - ignaling information transmitted by an instrument or facility from which a wire or electronic ommunication is transmitted, provided that such information must not include the contents of an communication. See 18 U.S.C. § 3127(3). C A trap and trace device or process captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing or signaling information a onably likely to identify the source of a wire or electronic communication, provided that -u h information does not include the contents of any communication. See 18 U.S.C. § 3 · - (4). 18.6.9.5 (U) STANDARDS FOR USE AND APPROVAL REQUIREMENTS FOR INVESTIGATIVE METHOD 18.6.9.5.1 (U) PEN REGISTER/TRAP AND TRACE UNDER FISA L Applications for authority to use a PR/TT device can be made to the FISC in national urity investigations. See 50 U.S.C. § 1842. 18-123 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: Oc.toher 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.6.9.5.1.1 (U) LEGAL ST ANDARD (U) Applications to the FISC are to be under oath and must include: A) (U) The identity of the federal officer making the application; and B) (U) A certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning an USPER or is information that is relevant to an ongoing investigation to protect the United States against international terrorism or clandestine intelligence activities; and that such investigation, if of an USPER, is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution. 18.6.9.5.1.2 (U)PROCEDURES (U//FOUO) Requests for opening or renewal of FISA PR/TT must be made using FISAMS and a standard "FISA Pen Register/Tra p and Trace Reque st Fo1m" for review by an attorney of the NSLB, OGC. For field offices /divisions with SCION access, Top Secret and /or SCI (including Secret SCI) level requests must be submitted through FISAMS on SCION. Field offices /divisions without SCION access must submit their Top Secret and /or SCI requests through appropriate secure channels (e.g., courier or secure fax). FISAMS will route the request to appropriate parties for their review and approval of the request as it proceeds from the field through FBIHQ, DOJ, and FISC. Routing a paper copy for signatures is not required . 18.6.9.5.1.3 (U) EMERGENCY AUTHORITY-FISA: 50 U.S.C. § 1843 (U//FOUO) Under the provisions ofFISA, the Attorney General may grant Emergency Authority (EA) for PR/TT. Requests for Emergency Authority must be referred to the appropriate FBIHQ division. (U//FOUO) Because of the expedited nature of these requests, they are generally handled by telephone or in person and not through FISAMS . In order to track the resulting court docket and create a record for renewal purposes, FISAMS has an express process that allows the FISA unit to create a tracking record and upload the resulting court orders or warrants. The express process can only be entered by the FISA unit at FBIHQ. After an emergency package and supporting FlSA order are obtained, contact the FlSA unit to ensure the package is entered into FISAMS. A) (U) The Attorney General may authorize the installation and use of a PR/TT upon a determination that an emergency exists and that the factual basis exists for a court order. The FISC must be informed at the time of the authorization and an application for a court order must be made to the court as soon as practicable, but no more than seven (7) days after the authorization. If the court does not issue an order approving the use of a PR/TT, an emergency-authorized PR/TT use must terminate at the earliest of when the information sought is obtained, when the FISC denies the application, or seven (7) days after the Attorney General authorization is given. B) (U) If the FISC denies the application after an emergency PR/TT device has been installed, no information collected as a result may be used in any manner, except with the approval of the Attorney General upon a showing that the information indicates a threat of death or serious bodily harm to any person .. Version Dated: October 15, 2011 18-124 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U) Notwithstanding the foregoing, the President, acting through the Attorney General, may authorize the use of a PRJTT, without a court order, for a period not to exceed 15 calendar days, following a declaration of war by Congress. See 50 U.S.C. § 1844. (U//FOUO) For an emergency authorization to use a PRJTT surveillance, DOJ 01 can be reached during regular business hours at (202) 514-5600 or through the DOJ Command Center at (202) 514-5000 at any time. 18.6.9.5.1.4 (U) FISA 0VERCOLLECTION (U//FOUO) In accordance with Foreign Intelligence Surveillance Court (FISC) Rule of Procedure 15, information acquired outside of the scope of the FISA authorization ("FISA overcollection") will no longer be sequestered with the FISC, absent extraordinary circumstances. Contact NSLB for further guidance regarding the handling of any FISA overcollection. 18.6.9.5.2 (U) CRIMINAL PEN REGISTER/TRAP AND TRACE UNDER TITLE 18 (U) Applications for the installation and use of a PRJTT device may be made to a "court of competentjurisdiction"-i.e., "any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals having jurisdiction over the offense being investigated, or any court of general criminal jurisdiction of a State authorized by the law of that State to enter orders authorizing the use of a pen register or trap and trace device." See 18 U.S.C. § 3127(2). 18.6.9.5.2.1 (U)LEGALSTANDARD (U) Applications for authorization to install and use a PRJTT device must include: A) (U) The identity of the attorney for the government or the state law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation; and B) (U) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. 18.6.9.5.2.2 (U//FOUO) PROCEDURES (U//FOUO) An SSA must approve a request for opening or renewal of PRJTT use by EC prior to submission of the request to an attorney for the government. Before approving such a request, the SSA should consider of the following: A) (U//FOUO) The use ofresources based on the investigative purpose set forth; B) (U//FOUO) Whether there is sufficient factual basis for the certification to be made in the application (i.e., is the information likely to be obtained relevant to an ongoing criminal investigation); C) (U//FOUO) Whether the customer or subscriber has consented to the use of a PR/TT, see 18 U.S.C. § 3121(b)(3); or 18-125 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver,;ion Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 D) (U//FOUO) Whether the use of a PR/TT is the least intrusive method if reasonable and effective based upon the circumstances of the investigation. (U//FOUO) A copy of the approving EC must be maintained in the pen register sub-: "PEN." (U//FOUO) A PRITT order is executable anywhere within the United States and , upo service, the order applies to any person or entity providing wire or electronic communication service in the United States whose assistance may facilitate the execliof the order. Whenever such an order is served on any person or entity not specific all_ named in the order, upon request of such person or entity, the attorney for the government or law enforcement or investigative officer that is serving the order mu t provide written or electronic certification that the order applies to the person or entity being served. 18.6.9.5.2.3 (U) EMERGENCY AUTHORITY-CRIMINAL: 18 U.S.C. § 3125 (U) The Attorney General , the Deputy Attorney General, the Associate Attorney Gen _ any Assistant Attorney General, any acting Assistant Attorney General, or any Depu ty Assistant Attorney General may specially designate any investigative or law enforce m · officer to reasonably determine whether an emergency situation exists that requires the installation and use of a PR/TT device before an order authorizing such installation an use can, with due diligence, be obtained and there are grounds upon which an order co - .... be entered authorizing the installation and use of a PR/TT. (U) An emergency situation as defined in this section involves: A) (U) Immediate danger of death or serious bodily injury to any person; B) (U) Conspiratorial activities characteristic of organized crime; C) (U) An immediate threat to a national security interest; or D) (U) An ongoing attack on a protected computer (as defined in 18 U.S.C. § 1030) that constitutes a crime punishable by a term of imprisonment greater than one year. (U) Only DOJ officials have the authority to authorize the emergency installation of a PRITT. The FBI does not have this authority. If the DOJ authorizes the emergency installation of a PR/TT, the government has 48 hours after the installation to apply for and obtain a court order according to 18 U.S.C. § 3123. It is a violation of law to fail to apply for and obtain a court order within this 48 hour period. Use of the PR/TT shall immediately terminate when the information sought is obtained, when the application for a court order is denied, or if no court order has been obtained 48 hours after the installation of the PR/TT device in emergency situations. (U//FOUO) As with requesting authorization for an emergency Title III, DOJ prefers for the AUSA to contact the DOJ Criminal Division Office of Enforcement Operations (OEO) to request an emergency PR/TT. After discussions with the AUSA, the DOJ attorney in consultation with the OEO Director or an Associate Director will determine whether the statutory requirements have been met. If so, the DOJ attorney will contact th appropriate Criminal Division official and obtain authorization to proceed. Once that Version Dated· October 15, 2011 18-126 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 approval has been obtained, the DOJ attorney will advise the AUSA that the emergency use has been approved and that the law enforcement agency may proceed with the installation and use of the PR/TT. The DOJ attorney will send a verification memorandum, signed by the authorizing official, to the AUSA. The AUSA will include an authorization memorandum with the application for the court order approving the emergency use. (U//FOUO) If an emergency situation arises after regular business hours, an attorney at DOJ OEO, Electronic Surveillance Unit (ESU) may be reached through the Department of Justice Command Center at (202) 514-5000. During regular business hours, the ESU may be reached at (202) 514-6809; facsimile (202) 616-8256. 18.6.9.6 (U) DURATION OF APPROVAL A) (U) FISA: The use of a PR/TT device may be authorized by the FISC for a period of time not to exceed 90 days in investigations targeting an USPER. Extensions may be granted for periods not to exceed 90 days upon re-application to the court. In investigations in which the applicant has certified that the information likely to be obtained is foreign intelligence information not concerning a U.S. person (USPER) , an order or extension may be for a period of time not to exceed one year . B) (U) Criminal: The installation and use of a PR/TT device may be authorized by court order under 18 U.S .C. § 3123 for a period not to exceed 60 days, which may be extended for additional 60-day periods . 18.6.9.7 (U) SPECIFIC PROCEDURES (U//FOUO) Prior to installing and using a PR/TT device (whether issued in a criminal or national security matter) , the case agent must: A) (U//FOUO) Coordinate with the technical advisor in advance of seeking approval or court order authority for the use of a PR/TT device to discuss required capabilities and submit an electronic technical request form to the technical advisor or the technical supervisor for use of the equipment or technique . Before executing the technical request , the technical advisor or technical supervisor must ensure that the PRITT may be affected according to the authorizing order or other statutory authority. The TTA is: (i) the primary point of contact for liaison with the carrier or provider ; (ii) responsible for coordinating the intercept; and (iii) will order any neces sary assistance from the provider . B) (U//FOUO) File a copy of each application and the order authorizing use of the PRITT in the pen register sub-file "PEN ." C) (U//FOUO) Ensure that the court order and cost information is entered into the Technical Management Database (TMD) so it can be tracked and managed according to policy requirements . D) (U//FOUO) For criminal PR/TT devices , ensure that upon termination of the coverage , the information required to be reported to Congress under 18 U .S.C. § 3126 is reported to FBIHQ using the Court Order Module in TMD . For all criminal PR/TT orders or extensions issued on or after January 1, 2009 , the TMD must be used to capture the required report information. PRITT devices used pursuant to consent or under the provisions of FISA are not included in the report to Congress . 18-127 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 E) (U//FOUO) Ensure that the data collected is promptly loaded electronically into Telephone Applications and any other applicable system. 18.6.9.8 (U) USE OF FISA DERIVED INFORMATION IN OTHER PROCEEDINGS (U//FOUO) There are statutory (50 U.S.C. Sections 1806, 1825 , and 1845) and Attorne ~ General (AG) policy restrictions on the use of information derived from a FISA ELS UR physical search, or PRITT. These restrictions apply to and must be followed by anyone "who may seek to use or disclose FISA information in any trial, hearing, or other proceeding in or before any court, department , officer, agency, regulatory body, or othe r authority of the United States .... " See DIOG Appendix E for the AG Memo, Revis ed Policy on the Use or Disclosure ofFISA Information, dated 01-10-2008. The guidance in the AG's Memo establishes notification/approval procedures which must be strictly followed. Though not contained in the AG Memo, FBI policy requires that use authorit y be obtained for foreign proceedings as well. Questions concerning the FISA use polic or requests for assistance in obtaining FISA use authority from the AG should be directed to NSLB's Classified Litigation Support Unit. (U//FOUO) The United States must, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or use that information or submit it into evidence, notify the "aggrieved person" [as defined in 50 U.S.C. Sections l 801(k), 1821(2), or 1841(2)], and the court or other authority in which the information is to be disclosed or used, that the United States intends to disclose or use such information. See 50 U.S .C. Sections 1806(c), 1825(d), and 1845(c). 18.6.9.9 18.6. 9. 9.1 (U) CONGRESSIONAL NOTICE AND REPORTING REQUIREMENTS (U) CRIMINAL PEN REGISTER/TRAP AND TRACE-ANNUAL REPORT (U) The Attorney General is required to make an annual report to Congress on the number of criminal PRITT orders applied for by DOJ law enforcement agencies. See 18 U .S.C. § 3126 . The report must include the following information: A) (U) The period of interceptions authorized by the order, and the number and duration of an extensions; B) (U) The offense specified in the order or application, or extension; C) (U) The number of investigations involved; D) (U) The number and nature of the facilities affected; and E) (U) The identity, including the district, of the applying agency making the application and the person authorizing the order. (U//FOUO) DOJ , Criminal Division, OEO requires the FBI to provide quarterly reports on pen register usage. To satisfy DOJ data requirements and standardize and simplify field reporting , court-ordered pen register usage must be reported to FBIHQ using the Court Order Module in TMD, "Pen Register /Trap and Trace Usage" within five (5) workdays after the expiration date of an original order and any extensions, or denial of an application for an order. For all criminal PRITT orders or extensions issued on or after January 1, 2009, the Version Dated: October 15, 2011 18-128 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 TMD must be used to capture the required report information. These reporting requirements do not apply to PRJTT authorized pursuant to consent or under the provisions of FISA. 18.6.9.9.2 (U) NATIONAL SECURITY PEN REGISTERS AND TRAP AND TRACE - SEMI-ANNUAL (U) The Attorney General must inform the House Permanent Select Committee on Intelligence, Senate Select Committee on Intelligence, Committee of the Judiciary of the House Representatives , and Committee of the Judiciary of the Senate concerning all uses of PRJTT devices pursuant to 50 U.S.C. § 1846. This report is coordinated through DOJ NSD. A emi -annual report must be submitted that contains the following information: A) (U) The total number of applications made for orders approving the use of PR/TT devices; B) (U) The total number of such orders either granted, modified, or denied; and C) (U) The total number of PR/TT devices whose installation and use was authorized by the Attorney General on an emergency basis and the total number of subsequent orders approving or denying the installation and use of such PRITT devices. 18.6.9.10 18.6.9.10.1 (U) POST CUT-THROUGH DIALED DIGITS (PCTDD) (U) OVERVIEW C 'FOUO) Telecommunication networks provide users the ability to engage in extended ialing and/or signaling (also known as "post cut-through dialed digits" or PCTDD), which in ::ome circumstances are simply call-routing information and, in others, are call content. For example, non-content PCTDD may be generated when a party places a calling card, credit ~ard. or collect call by first dialing a long-distance carrier access number and then, after the tial call is "cut through ," dialing the telephone number of the destination party. In other · -ranees, PCTDD may represent call content, such as when a party calls an automated 3.ll.king service and enters an account number, calls a pharmacy's automated prescription -e 'ill ervice and enters prescription information, or enters a call-back number when prompted -. a \'Oice mail service. See United States Telecom Assn v. Federal Communications mmis sion, 227 F.3d 450, 462 (D.C. Cir. 2000). After the initial "cut-through," a pen -e=· ter and the equipment that supports it cannot tell the difference between digits that are -- d to connect a call and those that would otherwise be considered content. FO 0) The definition of both a pen register device and a trap and trace device provides -~· he information collected by these devices "shall not include the contents of any unication ." See 18 U.S.C. § 3127(3) and (4). In addition, 18 U.S.C. § 3121(c) makes i it the requirement to "use technology reasonably available" that restricts the collection - · form ation "so as not to include the contents of any wire or electronic communications." t nt" includes any information concerning the substance, purport, or meaning of a muni cation. See 18 U.S.C. § 2510(8). When the pen register definition is read in . unc tion with the limitation provision, however, it suggests that although a PRITT device . not be used for the express purpose of collecting content, the incidental collection of - nt may occur despite the use of "reasonably available" technology to minimize, to the feas ible, any possible over collection of content while still allowing the device to • t all of the dialing and signaling information authorized. 18-129 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver51011Dated· October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) DOJ Policy: In addition to this statutory obligation, DOJ has issued a directive in the form of a DAG Memo (see below paragraph) to all DOJ agencies requiring that no affirmative investigative use may be made of PCTDD incidentally collected that constitutes content, except in cases of emergency - to prevent an immediate danger of death, serious physical injury, or harm to the national security. (U//FOUO) Although the DAG Memo, dated May 24, 2002 on "Avoiding Collection and Investigative Use of "Content" in the Operation of Pen Registers and Trap and Trace Devices," as written, applies only to the issuance of criminal pen register orders pursuant to 18 U.S.C. § 3121 et seq., the potential collection of PCTDD-content also exists for pen registers authorized under FISA. As such, the principles outlined in the DAG Memo apply to pen registers authorized pursuant to the FISA as well as pen registers authorized pursuant to Title 18 of the United States Code. In instances in which PCTDD are collected pursuant to FISA, the government may not make any affirmative investigative use of the information, even in cases of emergency, without authorization from the FISC. Any such emergency use must be recorded in the respective investigative files. 18.6.9.10.2 (U) COLLECTJONOFPCTDD (U//FOUO) When requesting pen register collection, the field office case agent must affirmatively decide whether to receive PCTDD during the course of a pen register collection . If no selection is made, the default is set not to collect PCTDD. A) (U//FOUO) The case agent shall, consistent with DIOG Section 18.6.9.10.1, submit an electronic technical request form that states whether PCTDDs are to be collected- for example, when the order authorizes the "recording or decoding of all dialing, routing, addressing, or signaling information." This selection is accomplished by marking the "Post Cut through Dialed Digits Authorized" check box for each monitored target. If this selection is not made, the PCTDD will not be collected or presented in any collection report. B) (U//FOUO) The case agent shall advise the technically trained agent (TTA) promptly upon learning that a particular pen register order expressly prohibits the collection or retention of PCTDD. The technical agent shall then take all reasonable steps to ensure compliance with the restrictive order, including coordinating with the service provider and with OTD personnel regarding the use of technology reasonably available to avoid the collection of all PCTDD. 18.6.9.10.3 (U) USEOFPCTDD (U//FOUO) If PCTDD information is collected pursuant to an authorized pen register, the following steps must be taken by all FBI personnel when reviewing pen register derived information to avoid the use of the contents of communications that may be contained within the string of digits: A) (U//FOUO) Prior to examining any PCTDD, identify- through use of administrative subpoena or other investigative means- the subscriber of the phone number to whom the initial connection was made (i.e., the origination number). 1) (U//FOUO) If the origination number does not appear to be pertinent to the investigation, no examination of any PCTDD associated with that initial phone number shall be made, absent an investigative need to examine the PCTDD. Version 0Jted: October 15, 2011 18-130 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 2) (U//FOUO) If the initial connection is determined to be to a financial institution as defined in the Right to Financial Privacy Act, 12 U.S.C. § 3401(1), PCTDD may not be examined, because there is reason to believe that the PCTDD may contain the contents of a communication, such as a bank account number. 3) (U//FOUO) The fact that the target called the bank, however, can be used for investigative or intelligence purposes, such as to subpoena bank records associated with the target; but any PCTDD cannot be used in the subpoena (such as a bank account number) or later to confirm information received from the bank. 4) (U//FOUO) If the initial connection is determined to be an entity for which it is reasonable to believe that the PCTDD would contain dialing or signaling information, such as a calling card number, a call spoof card service , a company otherwise providing direct access to a telephone service, or a business entity, the PCTDD may be examined to identify the ultimate destination of the call , or any other associated signaling or routing information, such as a calling card PIN or calling card account number. If the initial connection is to a business entity, like a hotel, for example, the PCTDD may be examined to determine if an extension number was dialed. 5) (U//FOUO) If, when examining PCTDD, numbers are encountered that constitute "content" of a communication, except as provided below, those numbers may not be used for any affirmative investigative purpose. In essence , those numbers must be treated as though they did not exist and cannot be used for any purpose. To the extent the information is included in any document for analytic or investigative use, the PCTDD numbers that constitute "content" must be redacted. B) (U//F OUO) Emergency Use: In an emergency, PCTDD that constitutes content may be used as necessary in criminal investigations to prevent immediate danger of death, serious physical injury, or harm to the national security. In instances in which PCTDD are collected pursuant to FISA, the government may not make any affirmative investigative use of the information, even in cases of emergency, without authorization from the FISC. 1) (U//FOUO) Approval: In criminal investigations only, an SSA or SIA, who reasonably determines that an emergency situation exists that requires the use of PCTDD content relating to the emergency , may approve the use of such PCTDD without delay. (U//F OUO) Notification: Within five (5) business days of such emergency use, the use of the particular PCTDD content must be documented in an EC to the appropriate investigative files (i.e., the investigation in which the pen register information was derived and the investigation in which it was used) with notification to the CDC and the FBI Gener al Counsel, OGC (Investigative Law Unit for criminal pen registers and National ecurity Law Branch for FISA pen registers). - 9.10.4 (U) WHATCONSTITUTESPCTDDcoNTENT UO In applying the above, the term "content" is interpreted to mean "any information --- ..-..= ~ "·, ~g the substance, purport, or meaning of a communication" as defined in 18 U.S.C. § -rions concerning whether specific PCTDD are content as opposed to dialing, ~- ·~ - _ dre sing, or signaling information should be addressed to the CDC or OGC for n with DOJ as necessary. Exemption: This policy does not pertain to e-mail or Internet account pen register ecause such electronic communications do not generate PCTDD. Nor does the to PCTDD obtained pursuant to a Title III or FISA electronic surveillance 18-131 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versio11 Dated: October l'i 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 order, because such orders authorize the interception of contents of communications associated with the targeted phone number. 18.6.9.11 (U//FOUO) CELL SITE SIMULATORS/DIGITAL ANALYZERS/WIRELESS INTERCEPT TRACKING TECHNOLOGY (U//FOUO) A PRITT order is required (absent consent of the wireless phone user) for the FBI to use equipment to capture any "signaling information"-including the Mobile Station Identification Number (MSIN) and Electronic Serial Number (ESN) or other registration-type data-emitted from a wireless phone into the public airspace-even though this can be accomplished without the assistance of the service provider. Because 18 U.S.C. § 3127 defines PR/TT devices in tenns of recording, decoding or capturing dialing, routing, addressing, or signaling information, the government's use of its own device to capture such signaling data- whether passively monitoring or actively interrogating-constitutes the use of a "pen register" device and requires an order or statutory exception to avoid violating the statute . The following discusses how wireless intercept tracking technology (WITT) is used: 18.6.9.11.1 (U//FOUO) To LOCATE A KNOWN PHONE NUMBER A) (U//FOUO) Authority: A standard PR/TT order issued pursuant to 18 U.S.C. § 3127 is adequate to authorize the use of this technology to determine the location of a known targeted phone, provided that the language authorizes FBI employees to install or cause to be installed and use a pen register device, without geographical limitation , at any time of day or night within (X) days from the date the order is signed, to record or decode dialing, routing, addressing, or signaling information transmitted by the "Subject Telephone." Due to varying and often changing court interpretations of the requirements for obtaining cell site location information , agents contemplating legal process to obtain such information should consult as necessary with their CDC and/or AUSA for the legal requirements in their particular jurisdiction. The application and order should generally also request authority to compel disclosure of cell site location data on an ongoing basis under 18 U.S.C. § 2703( d)-or probable cause , if such is required by the particular district court- as such information may assist in determining the general location of the targeted phone. FISA PRITT orders do not currently authorize the collection of cell site location information. B) (U//FOUO) Surveillance aid: Traditionally , this equipment has been deployed only as a surveillance aid. Using the results as evidence is generally discouraged because of the level of technical expertise required to effectively operate the equipment. Accordingly, FBI employees should corroborate and verify the information obtained through other means (e.g., pretext calls , CHS information , and MST surveillance) that can be used as evidence in any court filing (e.g., Title III affidavit , search warrant affidavit) . FBI employees may not make affirmative investigative use of signaling information inadvertently acquired that is known to have emanated from a private residence , unless it is necessary to prevent an immediate danger of death , serious physical injury , or harm to the national security. C) (U//FOUO) Targeting a residence: The deliberate use of this technology to determine whether a targeted phone is operating within a particular residence could be deemed to constitute a search under the Fourth Amendment. There is, however, currently no specific decision on point. The sale and use of this type of equipment is controlled as "surreptitious interception" equipment under 18 U.S .C. § 2512 . Accordingly , its authorized use is typically restricted to law enforcement or government and service providers for use in the normal course of business. It is likely, therefore, that such equipment would not be considered "in Version Dated October 15 2011 18-132 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 general public use." Under Kyllo v. United States, 533 U.S. 27 (2001), the use of equipment not in general public use to acquire data that is not otherwise detectable that emanates from a private premise implicates the Fourth Amendment. If so, the use of such equipment to target a particular residence to determine whether a particular cellular phone is operating inside the residence would constitute a search for purposes of the Fourth Amendment. D) 1. (U//FOUO) In the absence of clear law, such equipment should not be intentionally used to target a private premise to determine whether a particular targeted phone is operating inside nor be used to determine whether a targeted cellular phone is operating from within a particular private premise, absent consent, exigent circumstances or a search warrant for the phone (a search warrant in this circumstance would be similar to an anticipatory search warrant for a tracking device). Prior consultation with the AUSA involved in the investigation concerning the particular factual circumstances, however , may result in a determination that a warrant is not necessary. In the event a search warrant is obtained, consideration should be given to requesting delayed notice (18 U.S.C. § 3103a), to relying on corroborating techniques to confirm the existence of the phone, and to claiming a privilege against disclosure of the investigative technique based on the likely adverse result such disclosure would have on the future viability of the technique for investigations. 18. 6. 9.11.2 (U / /FOUO) To IDENTIFY AN UNKNOWN TARGET PHONE NUMBER (U//FOUO) Authority: A pen register order is required when this technology is used to identify an unkno'wn target phone number. The pen register application should explain that the device is used to detect regi stration signaling data from multiple phones, to include nontarget phones , at locations in which the target telephone is reasonably believed to be operating and then the recurrence of a common number is correlated to the presence of the target. Once the target number is identified , all non-target numbers are to be purged in order to protect the privacy of those non-targets , as well as to preserve promptly the operational use of the equipment. Hence , although the non-target data may be temporarily acquired, it is not maintained beyond that necessary to effect the pen register, e.g., to identify the targeted phone . No affirmative use of such incidentally acquired non-target data is permitted . U//F OUO) If active interrogation is to be used to identify a target phone, the pen register application should also advise the court of the potential for temporary disruption of service and state that , e.g. , "any potential interference to service occasioned by use of the Pen Register or Trap and Trace will be minimized so as to be no more disruptive than might ordinarily occur with cellular service coverage." (Note that there is no interference when the de ice is used to passively monitor RF signals.) A temporary disruption can be caused ecause when a phone registers with the device, it cannot simultaneously register with the prov ider's network. Consequently , the phone may experience a temporary disruption in -erv ice during the brief time that it is "registered" with the device - not unlike a typical lapse in cellular service occasionally experienced by the average cell phone user (e .g., dropped alls). Such a brief delay in coverage may be considered so de minimis as to be legally ·n ignificant. Nonetheless , informing the court in the application of the potential for nterf erence serves two objectives: ) (U//FOUO) Addresses the pen register statutory requirement that a pen register device be installed and used "with a minimum of interference with the services" accorded to the target of the pen register (18 U.S.C. § 3124(a)); and 18-133 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 B) (U//FOUO) Addresses potential claim based on Section 333 of title 47 of the United States Code, which provides "No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed" by the FCC-to include commercial cellular frequencies. This prohibition is arguably inapplicable to the use of this device by the government because the government is not included within the definition of "person." See 47 U.S.C. § 153(32). 18.6.9 .11.3 (U) PR/TT ORDER LANGUAGE (U) The language in the order should state that "the pen register will be implemented unobtrusively and with minimum interference with the services accorded to customers of such service." Version Dated: October 15, 2011 18-134 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.10 18.6.10.1 §18 (U) INVESTIGATIVEMETHOD: MAIL COVERS (U) SUMMARY (U) A mail cover may be sought only in a Predicated Investigation when there are reasonable grounds to demonstrate that the mail cover is necessary to: (i) protect the national security; (ii) locate a fugitive; (iii) obtain evidence of the commission or attempted commission of a federal crime; or (iv) assist in the identification of property, proceeds or assets forfeitable because ofa violation of criminal law. See 39 C.F.R. § 233.3(e)(2). (U) Subject to the requirements in this section, a criminal or national security mail cover may be sought on any person or entity, including but not limited to the subject of the investigation, when there are reasonable grounds to believe it is necessary to achieve one or more of the above-listed goals and the results of the mail cover are reasonably anticipated to be "relevant to" the Predicated Investigation. (U) A mail cover may be sought only from the United States Postal Service (USPS); a mail cover may not be requested from package carriers (e.g., Federal Express, United Parcel Service) that do not handle mail processed through the USPS. Nor may mail covers be requested from the military postal system overseas or from persons performing military postal duties overseas. As a general rule, a mail cover in the APO/FPO system overseas may only be ordered by a military authority competent to order searches and seizures for law enforcement purposes, usually a commanding officer. See DOD 4525.6-M, the DOD Postal Manual. 18.6.10.2 (U) APPLICATION (U//FOUO) Mail covers may be used in Predicated Jnvestigations, to include those opened to provide assistance to other agencies (consult the CDC or FBIHQ OGC for further guidance for assistance to other agencies). A mail cover cannot be used to collect positive foreign intelligence. A mail cover cannot be used during an Assessment. 18.6.10.3 (U) LEGALAUTHORITY A) (U) Postal Service Regulation 39 C.F.R. § 233.3 is the sole authority and procedure for opening a mail cover and for processing, using and disclosing information obtained from a mail cover; B) (U) There is no Fourth Amendment protection for information on the outside of a piece of mail. See, e.g., U.S. v. Choate, 576 F.2d 165, 174 (9th Cir., 1978); and U.S. v. Huie, 593 F.2d 14 (5th Cir., 1979); and C) (U) AGG-Dom , Part V.A.2. 18.6.10.4 (U) DEFINITIONOF INVESTIGATIVEMETHOD (U) A mail cover is the non-consensual recording of any data appearing on the outside cover of any sealed or unsealed mail matter to obtain information in order to: A) (U) Protect the national security; B) (U) Locate a fugitive; 18-135 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 C) (U) Obtain evidence of commission or attempted commission of a federal crime; D) (U) Obtain evidence of a violation or attempted violation of a postal statute; or E) (U) Assist in the identification of property, proceeds or assets forfeitable under law. See 39 C.F.R. § 233.3(c) (1). (U) In this context, a "recording" means the transcription, photograph, photocopy, or other facsimile of the image of the outside cover, envelope, or wrappers of mailed matter. A warrant or court order is almost always required to obtain the contents of any class of mail, sealed or unsealed. 18.6.10.5 (U) STANDARD FOR USE AND APPROVAL REQUIREMENTS FOR INVESTIGATIVE METHOD (U) The standard to obtain a mail cover is established by the Postal Service regulation. The Chief Postal Inspector may order a mail cover"[ w ]hen a written request is received from any law enforcement agency in which the requesting authority specifies the reasonable grounds to demonstrate the mail cover is necessary to: A) (U) Protect the national security; B) (U) Locate a fugitive; C) (U) Obtain information regarding the commission or attempted commission of a crime; or D) (U) Assist in the identification of property, proceeds or assets forfeitable because of a violation of criminal law." See 29 C.F.R. § 233.3(e)(2). (U//FOUO) National Security Mail Cover: A national security mail cover request may be approved by the field office ADIC or SAC or at Headquarters by the EAD of the National Security Branch. A national security mail cover sought "to protect the national security" includes protecting the United States from actual or threatened attack or other grave, hostile act; sabotage; international terrorism; or clandestine intelligence activities, including commercial [economic] espionage by foreign powers or their agents. (U//FOUO) After SSA approval, a national security mail cover request must be reviewed for legal sufficiency by an FBI attorney (i.e., CDC, ADC, or OGC NSLB attorney) before it may be approved by an ADIC or SAC (including anyone who is officially in an acting ADIC or SAC capacity) or the EAD of the National Security Branch (approval cannot be delegated). (U//FOUO) Required Form: The FD-1064a must be used for all National Security Mail Covers. (U//FOUO) Criminal Mail Cover: A criminal mail cover request may be approved by the field office SSA. The SSA may approve a request for a mail cover if there are reasonable grounds to demonstrate that the mail cover is necessary to assist in efforts to: (i) locate a fugitive; (ii) obtain information regarding the commission or attempted commission of a federal crime; or (iii) to assist in the identification of property, proceeds or assets forfeitable because of a violation of criminal law. (U//FOUO) Required Form: The FD-1064 must be used for all Criminal Mail Covers. Vcrs10n Dated: October 15, 20 Ll 18-136 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOROFFICIALUSEONLY Domestic Investigations and Operations Guide §18 (U//FOUO) Review and Approval o{National Security or Criminal Mail Cover Requests: Approval of any mail cover request or extension is conditioned on the following criteria being met: A) (U//FOUO) The request states a reasonable ground to demonstrate the mail cover is necessary to: (i) locate a fugitive; (ii) obtain information regarding the commission or attempted commission of a federal crime; (iii) assist in the identification of property, proceeds or assets forfeitable because of a violation of criminal law; or (iv) protect the national security. B) (U//FOUO) The request for the mail cover includes the full name and complete address, to include postal ZIP Code, if known, of the mail to be covered. If the name of the mail recipient is unknown, the request includes an explanation of why obtaining information regarding mail addressed to the targeted address is necessary to accomplish the authorized objective of the mail cover. [f other individuals using the same address are not to be covered, the request includes those names and the fact that they should be excluded from coverage. C) (U//FOUO) In a national security investigation, if a mail cover is requested on an organization, the request states, if known , whether the organization is organized under the laws of the United States or foreign laws and whether any United States persons (USPERs) or non-United States persons (non-USPERs) work there. The request specifically names USPERs not to be covered, if appropriate. If the subject is a foreign establishment or corporation, the request lists and excludes, if necessary, the USPERs working in the establishment, to the extent the information is known. D) (U//FOUO) If the request is to obtain information regarding the commission or attempted commission of a federal crime, the request: (i) cites the specific criminal statute , with a description of the violation , the penalty for the violation, and the nexus between the investigation and each address /subject; (ii) sets forth how the subject of the mail cover is violating the statute or how the subject is otherwise connected to the investigation; and (iii) explains how the mail cover will facilitate the investigation , e.g., identify the location of property or assets for forfeiture by revealing banking information. E) (U//FOUO) The request describes the classes of mail to be covered, including whether outgoing and/or incoming mail is to be covered. Classes of mail to be covered beyond first class must be specifically requested and justified according to the "reasonable grounds" standard articulated in the Postal Service regulation . See 39 C.F.R. § 233.3(e)(2). F) (U//FOUO) If the subject of the mail cover is represented by legal counsel or under indictment, the request provides the name and address of legal counsel , if known. Under postal regulations, a mail cover must not include matter mailed between the mail cover subject and the subject's attorney, unless the attorney is also a subject under the investigation. G) (U//FOUO) The request states the duration for which the mail cover is requested and notes that the authorized period begins on the date the request is instituted by the local post office. H) (U//FOUO) The request specifies the name and address of the individual to whom the results of the mail cover should be forwarded. I) (U//FOUO) The request specifies mechanical reproduction (photocopying) only when necessary and, if photocopying is requested, must include a statement to the effect that: "The nature of the language or writing on envelopes often makes it difficult to transcribe;" or, in 18-137 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dated: October 1c;, 20 1 l UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 exceptional cases, a statement to the effect that: "Because the return address and other physical features of some envelopes addressed to the subject are known to contain secret writing and/or clandestine instructions , it is requested that this mail cover include mechanical reproduction of both sides of all first class and priority envelopes addressed to the subject." (U) Emergency Requests: When time is of the essence, the Chief Postal Inspector, or designee, may act upon an oral request to be confirmed by the requesting authority, in writing , within three calendar days. Information may be released prior to receipt of the written request only when the releasing official is satisfied that an emergency situation exists. See 39 C.F.R. § 233.3(e)(3). (U) An "emergency situation" exists when the immediate release of information is required to prevent the loss of evidence or when there is a potential for immediate physical harm to persons or property. See 39 C.F .R. § 233.3(c)(l0). 18.6.10.6 (U) DURATION OF APPROVAL A) (U) National Security Mail Covers: No national security mail cover may remain in force for longer than 120 continuous days unless personally approved for further extension by the Chief Postal Inspector or his/her designees at National Headquarters . See 39 C.F.R. § 233.3(g)(6) . B) (U) Criminal Mail Covers Except Fugitives: A mail cover in a criminal investigation is limited to no more than 30 days , unless adequate justification is provided by the requesting authority. See 39 C.F.R . § 233.3(g)(5) . Renewals may be granted for additional 30-day periods under the same conditions and procedures applicable to the original request. The requesting authority must provide a statement of the investigative benefit of the mail cover and anticipated benefits to be derived from the extension. C) (U) Fugitives: No mail cover instituted to locate a fugitive may remain in force for longer than 120 continuous days unless personally approved for further extension by the Chief Postal Inspector or his/her designees at National Headquarters . See 39 C.F.R. § 233.3(g)(6) . D) (U) Exception for Indictments and Information: Except for fugitive investigations , no mail cover may remain in force when an information has been filed or the subject has been indicted for the matter for which the mail cover has been requested . If the subject is under investigation for further criminal violations , or a mail cover is required to assist in the identification of property, proceeds or assets forfeitable because of a violation of criminal law , a new mail cover order must be requested. See 39 C.F.R. § 233.3(g)(7). Any mail cover results pertaining to the subject(s) provided by the USPS after an indictment or information is filed cannot be used for investigative purposes or uploaded by the FBI ( other than the exception regarding fugitives) , and shall be returned promptly to the USPS . 18.6.10.7 (U) STORAGE OF MAIL COVER INFORMATION (U//FOUO) The Postal Regulation requires that physical storage of all reports issued pursuant to a mail cover request to be at the discretion of the Chief Postal Inspector. See 39 C.F.R. § 233.3(h)(l). Accordingly, FBI employees must conduct a timely review of mail cover documents received from the USPS. A copy of the signed mail cover request and the signed transmittal letter must be maintained in the investigative file. Version Dated: October 15,2011 18-138 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.10.8 (U) RETURN OF MAIL COVER INFORMATION TO §18 USPS (U// FOUO) Current USPS policy guidance for a mail cover in a criminal investigation requires return to the USPS of all documentation provided by the USPS in a mail cover and prohibits copying and retention of these documents. The documents should be returned to the USPSafter final adjudication and/ortheclosing oftheinvestigation; thefact thatmaterials were returned to USP~ must be d?cumented in the investigative file. This policy guidance does not apply to a national secunty mail cover. 18.6.10.9 (U) COMPLIANCE AND MONITORING (U//F OUO) FBI employees must conduct a timely review of mail cover information received from the USPS for any potential production of data beyond the scope of the requested mail cover ("overproduction"). Overproduced information from a mail cover must not be uploaded into any FBI database or used in any manner. A) (U//FOUO) Criminal Mail Cover - Overproduction: Overproduced information must be returned with a letter to the assigned to the USPS entity from which it was obtained stating the reason(s) for the return. Destruction of the overproduced material is not an option under the current Postal regulations. B) (U//FOUO) National Security Mail Cover - Overproduction: Overproduced information in national security investigations must either be destroyed or returned to the USPS entity that produced it at the discretion of the field office or HQ division which requested the mail cover. If the information is returned, it must be accompanied with a letter to the USPS entity which produced the materials stating the reason(s) for the return of the information. If the information is to be destroyed, the supervisor responsible for the investigation must approve the destruction and its scope. This decision must be documented in an EC to the investigative file. 18-139 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Version Dated: October lS, 2011 18-140 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.11 18.6.11.1 §18 (U) INVESTIGATIVEMETHOD: POLYGRAPHEXAMINATIONS (U) SUMMARY (U//FOUO) The polygraph examination is used in Predicated Investigations to: (i) aid in determining whether a person has pertinent knowledge of a particular matter under investigation or inquiry; (ii) aid in determining the truthfulness of statements made or information furnished by a subject, victim, witness , CHS, or an individual making allegations; and (iii) obtain information leading to the location of evidence, individuals or sites of offense. (U//FOUO) Polygraphs are administered only to those who agree or volunteer to take the examination. An examination is conducted only when the examiner , in his/her professional judgment, believes the results will be accurate. All examinations must be conducted under an investigative file number. (U//FOUO) This policy does not limit other authorized uses of polygraph method outside of Assessments or Predicated Investigations, such as the FBI's responsibilities to conduct background checks and inquiries concerning applicants and employees under federal personnel security programs. 18.6.11.2 (U) APPLICATION (U//FOUO) This investigative method may be used in national security investigations , criminal investigations and positive foreign intelligence collection investigations, and for assistance to other agencies when it is not otherwise prohibited by AGG-Dom, Part III.B .2-3. This method cannot be used during an Assessment , with the exception of Type 5 Assessments. See DIOG Section 5.6.3.4 .8 and the IPG for the policy governing the use of polygraph examinations during a Type 5 Assessment. 18.6.11.3 (U) LEGALAUTHORITY (U) AGG-Dom , Part V.A.6. 18.6.11.4 (U) STANDARDSFOR USE AND APPROVALREQUIREMENTSFORINVESTIGATIVE METHOD (U//FOUO) An SSA may approve the use of a polygraph if: A) (U//FOUO) The individual agrees to or volunteers to take the examination ; B) (U//FOUO) The examiner, in his/her professional judgment, believes the results will be accurate; and C) (U//FOUO) The investigative method is reasonably likely to achieve investigative objectives . 18.6.11.5 (U) DURATIONOFAPPROVAL (U//FOUO) Polygraph examinations may be administered only to individuals who agree or volunteer to take an examination. The polygraph can be administered as long as the individual continues to agree to the examination, and the examiner, in his/her professional judgment, 18-141 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dated· Octol r 15, 2011 0 §18 UNCLASSlFlED - FOR OFFlClAL USE ONl, Y Domestic Investigations and Operations Guide believes the results will be accurate based upon an evaluation [assessment] of the physical and mental fitness of the examinee to undergo the examination. 18.6.11.6 (U) SPECIFICPROCEDURES (U//FOUO) An EC must be prepared requesting SSA approval for the polygraph. If an AUSA is assigned to the investigation, an FBI employee must confer with the USAO to discuss any prosecutorial issues prior to the administration of a polygraph. 18.6.11. 7 (U) COMPLIANCEAND MONITORING (U//FOUO) All polygraphs conducted in Predicated Investigations must be documented in the investigative file. Those polygraph examinations conducted in a Type 5 Assessment must be documented in the Assessment file. Vers10n Dated: October 15, 2011 18-142 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.12 §18 (U) INVEST/GA TIVE METHOD: TRASH COVERS (SEARCHES THAT Do NOT REQUIRE A WARRANT OR COURT ORDER) 18.6.12.1 (U) SUMMARY (U) The Fourth Amendment to the United States Constitution prevents the FBI from conducting unreasonable searches and seizures . It also generally requires a warrant be obtained if the search will intrude on a reasonable expectation of privacy. To qualify as a "reasonable expectation of privacy," the individual must have an actual subjective expectation of privacy and society must be prepared to recognize that expectation as objectively reasonable. See Katz v. United States, 389 U.S . at 361. If an individual has a reasonable expectation of privacy , a warrant or order issued by a court of competent jurisdiction or an exception to the requirement for such a warrant or order is required before a search may be conducted . Physical searches of personal or real property may be conducted without a search warrant or court order if there is no reasonable expectation of privacy in the property or area. As a general matter, there is no reasonable expectation of privacy in areas that are exposed to public view or that are otherwise available to the public. (U /FOUO) Note: Consent Searches are authorized in Assessments, as well as in Predicated Investigations. ' U) A reasonable expectation of privacy may be terminated by an individual abandoning property, setting trash at the edge of the curtilage or beyond for collection, or when a private party reveals the contents of a package. However, the AGG-Dom and FBI policy have re tricted the use of "trash covers" to Predicated Investigations as set forth in this section. 18.6.12.2 (U) APPLICATION C FOUO) The FBI may conduct trash covers , as defined below in Section 18.6.12.4.1, in Predica ted Investigations. This investigative method may be used in national security nvestig ations, criminal investigations , foreign intelligence collection investigations , and for ~- istance·to other agencies when it is not otherwise prohibited by AGG-Dom , Part III.B.2-3 . .....F OUO) This method cannot be used during an Assessment , with the exception of a Type : A. sessment. (See DIOG Section 5.6.3.4.8) 18.6.12.3 (U) LEGAL AUTHORITY A) (U) AGG-Dom , Part V.A.3, B) (U) Fourth Amendment to the United States Constitution 18. 6.12.4 18. 6.12.4.1 (U) DEFINITION OF INVESTIGATIVE METHOD (U) DISTINCTION BETWEEN "TRASH COVERS" AND SEARCHES OF ABANDONED PROPERTY OR TRASH A) (U// FOUO) Trash Cover: The intentional search of a specific person's trash (that is located at the place for collection) , whether from a home or business , designed to find information 18-143 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic 1nvestigations and Operations Guide relevant to an ongoing investigation when no reasonable expectation of privacy exists. A trash cover is a targeted effort to gather information regarding a particular person or entity by reviewing that person or entity's refuse. Generally, a trash cover is a planned in advance activity based upon information obtained that a specific trash container will contain evidence or intelligence of an investigative interest, and that such activity will occur over a specified period of time. B) (U//FOUO) Search o{Abandoned Propertv or Trash: A search of abandoned property or trash that has been placed in a publicly accessible garbage container is not a "trash cover" under the definition above. If an FBI employee observes an individual abandoning something. for example, in a publicly accessible garbage can, or observes possible evidence of a crime or something of intelligence value in a public trash receptacle, the FBI employee may recover the item(s) without having an Assessment or Predicated Investigation open at that time. 18. 6.12.4.2 (U) DETERMINATION OF AN AREA OF CURT/LAGE AROUND A HOME (U) Whether an area is curtilage around a home is determined by reference to four factors: (i) proximity of the area in question to the home; (ii) whether the area is within an enclosure surrounding the home; (iii) nature of the use to which the area is put; and (iv) steps taken to protect the area from observation by passers-by. (U) An area is curtilage if it is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection . 18.6.12.5 (U) STANDARDS FOR USE AND APPROVAL REQUIREMENTS FOR INVESTIGATIVE METHOD (U//FOUO) SSA approval is required for the use of this method. However, if there is a doubt as to whether a person has a reasonable expectation of privacy in the area to be searched, the employee must consult with the CDC or OGC to determine whether a search warrant is required. Use of this method must be documented in the investigative file. Vers10n Dated: October 15, 2011 18-144 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.6.13 18.6.13.1 §18 {U) INVESTIGATIVEMETHOD: UNDERCOVEROPERATIONS (U) SUMMARY (U//FOUO) The undercover method of investigation , including use of proprietary business entities, is essential to the FBI's capability to covertly gather evidence and intelligence that will allow for the detection , disruption , prevention , and prosecution of individuals and enterprises that engage in criminal conduct or that pose a threat to the national security . The method inherently involves deception and may require cooperation with persons whose motivation and conduct are open to question . Accordingly , this method should be carefully considered and monitored throughout its use. (U//FOUO) Undercover operations must be conducted in conformity with The Atto rney General 's Guidelines on Federa l Bureau of Investigation Undercover Operatio ns (AGGUCO) in investigations relating to activities in violation of federal criminal law that do not concern threats to the national security or foreign intelligence . In investigations that concern threats to the national security or foreign intelligence , undercover operations involving religious or political organizations must be reviewed and approved by FBI Headquarters , with participation by the NSD in the review process . (AGG-Dom , Part V.A.7) Other undercover operations involving threats to the national security or foreign intelligence are reviewed and approved pursuant to FBI policy as described herein. ( //F OUO) Application: This investigative method may be used in national security in estigations , criminal investigations and positive foreign intelligence collection in estigations, and for assistance to other agencies when it is not otherwise prohibited by AG G-Dom , Part III.B .2-3. This method cannot be used during an Assessment. 18.6.13.2 (U) LEGAL AUTHORITY A) (U) AGG-Dom, Part Y.A.7 B) (U) AGG-UCO 18.6.13.3 (U) DEFINITION OF INVESTIGATIVE METHOD A) (U//FOUO) Undercover Activity: An "undercover activity" is any investigative activity involving the use of an assumed identity by an undercover employee for an official purpose, investigative activity, or function. An "undercover employee" is an employee of the FBI, another federal, state, or local law enforcement agency, another entity of the USIC, or another foreign intelligence agency working under the direction and control of the FBI whose relationship with the FBI is concealed from third parties by the maintenance of a cover or alias identity for an official purpose, investigative activity, or function. B) (U//FOUO) Undercover Operation: An "undercover operation" is an operation that involves a eries of related "undercover activities" over a period of time by an "undercover employee." A series of related undercover activities consists of more than five separate substantive contacts by an undercover employee with the individuals under investigation. In investigations relating to activities in violation of federal criminal law that do not concern threats to the national ecurity or foreign intelligence, undercover activity involving sensitive circumstances, which are listed in the AGG-UCO and the FGUSO, constitutes an undercover operation regardless of the number of contacts involved. A substantive contact is a communication, whether by oral, 18-145 UNCLASSIFIED - FOR OFFI C IAL USE ONLY Version Dated: October 1:5,2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 written, wire, or electronic means, that includes information of investigative interest. Mere incidental contact (e.g., a conversation that establishes an agreed time and location for another meeting) is not a substantive contact within the meaning of this policy. 18.6.13.3.1 (U) DISTINCT/ON BETWEEN SENSITIVE CIRCUMSTANCE AND SENSITIVE INVESTIGATIVE MATTER (U//FOUO) The term "sensitive investigative matter" as used in the AGG-Dom should not be confused with the term "sensitive circumstance" as that term is used in undercover operations or ELSUR matters. The term sensitive circumstance relates to a circumstance that arises in an undercover operation that requires the UCO to obtain FBIHQ approval. A comprehensive list of sensitive circumstances for criminal activities is contained in the AGG-UCO and for national security matters in the National Security Undercover Operations Policy Implementation Guide (NSUCOPG). The Criminal Undercover Operations Review Committee (CUORC) and the national security Undercover Review Committee (UCRC) must review and approve undercover operations that involve sensitive circumstances. The detailed policy for undercover operations is described in this section of the DIOG, the Field Guide for Undercover and Sensitive Operations (FGUSO) , the NSUCOPG , and the FBIHQ operational division PGs. 18.6.13.4 (U//FOUO) STANDARDS FOR USE AND APPROVAL REQUIREMENTS FOR INVESTIGATIVE METHOD 18.6.13.4.1 (U) STANDARDS FOR USE OF INVESTIGATIVE METHOD (U//FOUO) An official considering approval or authorization of a proposed undercover application must weigh the risks and benefits of the operation , giving careful consideration to the following: A) (U//FOUO) The risks of personal injury to individuals, property damage, financial loss to persons or business, damage to reputation, or other harm to persons; B) (U//FOUO) The risk of civil liability or other loss to the government; C) (U//FOUO) The risk of invasion of privacy or interference with privileged or confidential relationships and any potential constitutional concerns or other legal concerns; D) (U//FOUO) The risk that individuals engaged in undercover operations may become involved in illegal conduct; and E) (U//FOUO) The suitability of government participation in the type of activity that is expected to occur during the operation. See AGG-UCO, Part IV.A. 18. 6.13.4.2 (U / /FOUO) APPROVAL REQUIREMENTS FOR UC Os (INVEST/GA TIO NS OF VIOLA TIO NS OF FEDERAL CRIMINAL LAW THAT DO NOT CONCERN THREATS TO NATIONAL SECURITY OR FOREIGN INTELLIGENCE} (U//FOUO) The following approval and authorization requirements apply to undercover operations relating to activities in violation of federal criminal law that do not concern threats to the national security or foreign intelligence: Version Dated October 15, 2011 18-146 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 A) (U//FOUO) An "undercover activity" in which an undercover employee plans to meet with a subject requires the approval of the SSA. B) (U//FOUO) An "undercover operation" must be approved by the SAC. The CDC must review all undercover operations before approval and provide advice to the SAC regarding predication of subjects , entrapment issues, and whether the proposal meets the requirements of ' the AGG-UCO or other DOJ and FBI policy guidance. C) (U//FOUO) In addition to SAC approval, authorization from the responsible FBIHQ Assistant Director or Executive Assistant Director must be obtained if the undercover operation involves a sensitive circumstance or certain fiscal circumstances , as those terms are defined in the AGG-UCO or other FBI guidance. D) (U//FOUO) Undercove r operations that involve a sensitive circumstance (Group I undercover operations) require review by the CUORC as part of the authorization process. This requirement applies to both new and renewal proposals . E) (U//FOUO) Undercover operations that do not involve a sensitive circumstance (Group II undercover operations) require notice to the appropriate FBIHQ operational unit and to the Undercover and Sensitive Operations Unit following SAC approval. A renewal that would extend the operation beyond one year requires authorization from the responsible Assistant Director. F) (U//FOUO) All Innocent Images National Initiative (UNI) undercover operations deemed Group I and Group II operations require opening and renewal approvals from FBIHQ , Cyber Division . Group I HN I undercover operatio ns will also be reviewed by the CUORC. G) (U//FOUO) Requirements for interim approval and emergency approval for undercover operations are contained in the FGUSO. 18.6.13.4.3 [U//FOUO) APPROVAL REQUIREMENTS FOR UCOS {INVESTIGATIONS OF VIOLATIONS THAT CONCERN THREATS TO NATIONAL SECURITY OR FOREIGN INTELLIGENCE) (U//FOUO) The following approval requirements apply to undercover operations that concern threats to the national security or foreign intelligence: A) (U//FOUO) An "undercover operation " must be approved by the SAC. The CDC must review all undercover operations before approval and provide advice to the SAC regarding predication of subjects , entrapment issues, and whether the proposal meets the requirements of the NSUCOPG, or other DOJ and FBI policy guidance. B) (U//FOUO) In addition to SAC approval, authorization from the responsible FBIHQ Assistant Director or Executive Assistant Director must be obtained if the undercover operation involves a sensitive circumstance , as defined in NSUCOPG . C) (U//FOUO) Undercover operations that involve a sensitive circumstance must be reviewed and authorized by the responsible Assistant Director (Group I operations). Review by the UCRC must precede such authorization. If the matter involves religious or political organizations, the review must include participation by a representative of the DOJ NSD . See AGG-Dom, Section V; and NSUCOPG . D) (U//FOUO) Undercover operations that do not involve a sensitive circumstance (Group II undercover operations) must be forwarded to the appropriate operational unit at FBIHQ for review on a UACB basis prior to initiation of the operation . A renewal that would extend the operation beyond 12 months requires authorization from the responsible Deputy Assistant Director or Assistant Director. 18-147 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver<;ion Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 E) (U//FOUO) Requirements for interim approval and emergency approval for undercover operations are contained in NSUCOPG. 18.6.13.5 (U) DURATION OF APPROVAL (U//FOUO) FBI undercover operations are generally approved for a maximum period of six months with six month renewal periods authorized thereafter. 18.6.13.6 (U) ADDITIONAL GUIDANCE A) (U//FOUO) The FGUSO provides additional guidance for the use of the undercover method in all undercover operations relating to activities in violation of federal criminal law that do not concern threats to the national security or foreign intelligence . B) (U//FOUO) Undercover activities and operations that concern threats to the national security or foreign intelligence must be carried out in conformity with the NSUCOPG and the appropriate investigative program PG that is responsible for the UCO . C) (U//FOUO) The FD-997, Application for Undercover Authority , must be used to obtain approvals for all undercover operations , Group I and Group II. Case agents should consult with the field office CDC and Undercover Coordinators in planning proposed UCOs. 18.6.13. 7 (U) COMPLIANCEAND MONITORING,AND REPORTING REQUIREMENTS (U/ /FOUO) All UCOs must provide an annual investigative/ compliance summary using the FD-998 to appropriate FBIHQ undercover program managers. Version Dated October 15, 2011 18-148 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.7 §18 (U) AUTHORIZEDINVESTIGATIVEMETHODS IN FULL INVESTIGATIONS (U) See AGG-Dom, Part V.A.11-l 3. (U) In Full Investigations, to include Enterprise Investigations, the authorized investigative methods include: A) (U) The investigative methods authorized for Assessments. 1) (U) Public information. (See Section 18.5. 1) 2) (U) Records or information - FBI and DOJ. (See Section 18.5.2) 3) (U) Records or information - Other federal , state , local , tribal, or foreign government agency. (See Section 18.5.3) 4) (U) On-line services and resources. (See Section 18.5.4) 5) (U) CHS use and recruitment. (See Section 18.5.5) 6) (U) Interview or request information from the public or private entities . (See Section 18.5.6) 7) (U) Information voluntarily provided by governmental or private entities . (See Section 18.5.7) 8) (U) Physical Surveillance (not requiring a court order ). (See Section 18.5.8) B) (U) The investigative methods authorized for Preliminary Investigations. l) (U) Consensual monitoring of communications , including electronic communications. (See Section 18.6.1) 2) (U) Intercepting the communications of a computer trespasser. (See Section 18.6.2) 3) (U) Closed-circuit television/video surveillance , direction finders , and other monitoring device s. (See Section 18.6.3) 4) (U) Administrative subpoenas. (See Section 18.6.4 ) 5) (U) Grand jury subpoenas. (See Section 18.6.5) 6) (U) National Security Letters . (See Section 18.6.6) 7) (U) FlSA Order for business records. (See Section 18.6.7) 8) (U) Stored wire and electronic communications and transactional records . (See Section 18.6.8) 18 9) (U) Pen registers and trap/trace devices . (See Section 18.6.9 ) l 0) (U) Mail covers . (See Section 18.6. l 0) 11) (U) Polygraph examinations. (See Section 18.6.1 1) 12) (U) Trash Cover s (Searches that do not require a warrant or court order). (See Section 18.6.12 ) 13) (U) Undercover operations. (See Section 18.6.13 ) FOUO)The use of Search Warrants to obtain this information in Preliminary Investigations is - b1ted. (See DIOGSection 18.6.8.4.2.3) 18-149 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated . October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 C) (U) Searches - with a warrant or court order (reasonable expectation of privacy) . (See Section 18.7. 1 below) D) (U) Electronic surveillance - Title III. (See Section 18.7.2 below) E) (U) Electronic surveillance - FISA and FISA Title VII (acqui sition of foreign intelligence information). (See Section 18.7.3 below) (U//FOUO) Not all investigative methods are authorized while collecting foreign intelligence as part of a Full Investigation. See DIOG Section 9 for more information . Version Datect: October 15, 2011 18-150 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.7.1 §18 (U) INVEST/GATIVEMETHOD: SEARCHES- WITH A WARRANT OR COURT ORDER (REASONABLEEXPECTATIONOFPRIVACY) (U) See AGG-Dom, Part V.A.12 and the Attorney General's Guidelines On Methods Of Obtaining Documentary Materials Held By Third Parties, Pursuant to Title 11, Privacy Protection Act of 1980 (Pub. L. 96-440, Sec. 201 et seq.; 42 U.S.C. § 2000aa-11, et seq.). 18.7.1.1 (U) SUMMARY (U) The Fourth Amendment to the United States Constitution governs all searches and seizures by government agents. The Fourth Amendment contains two clauses. The first establishes the prohibition against unreasonable searches and seizures. The second provides that no warrant (authorizing a search or seizure) will be issued unless based on probable cause. Although an unlawful search may not preclude a prosecution, it can have serious consequences for the government. These include adverse publicity, civil liability against the employee or the government and the suppression of evidence from the illegal seizure. (U//FOUO) Application: Physical search requiring a judicial order or warrant may be used in a Full (national security and criminal) Investigation and to collect foreign intelligence information. This method may not be used for: (i) an Assessment or Preliminary Investigation; or (ii) providing assistance to other agencies, unless there is already an FBI FISA or warrant related to the request for assistance. Attorney General approval must be obtained prior to using any FISA-obtained or derived information in any proceeding whether foreign or domestic. When providing assistance to a foreign agency, information must be provided pursuant to the FBI Foreign Dissemination Manual and the FBI's Standard Minimization Procedures or other applicable minimization procedures." (U) A search is a government invasion of a person's privacy. To qualify as reasonable expectation of privacy, the individual must have an actual subjective expectation of privacy and society must be prepared to recognize that expectation as objectively reasonable. See Katz v. United States, 389 U.S. at 361. The ability to conduct a physical search in an area or situation where an individual has a reasonable expectation of privacy requires a warrant or order issued by a court of competent jurisdiction or an exception to the requirement for such a warrant or order. The warrant or order must be based on probable cause. The United States Supreme Court defines probable cause to search as a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 ( 1983). A government agent may conduct a search without a warrant based on an individual's voluntary consent. A search based on exigent circumstances may also be conducted without a warrant, but the requirement for probable cause remains. 18.7.1.2 (U) LEGAL AUTHORITY (U) Searches conducted by the FBI must be in conformity with FRCP Rule 41; FISA, 50 U.S.C. §§ 1821-1829; or E.O. 12333 § 2.5. 18-151 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.7.1.3 (U) DEFINITION OF INVESTIGATIVE METHOD (U) Physical Search defined: A physical search constitutes any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in the seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a perso~ has a reasonable expectation of privacy. (U) A physical search requiring a warrant does not include: (i) electronic surveillance as defined in FISA or Title III; or (ii) the acquisition by the United States Government of foreign intelligence information from international foreign communications, or foreign intelligence activities conducted according to otherwise applicable federal law involving a foreign electronic communications system, using a means other than electronic surveillance as defined in FISA. 18.7.1.3.1 {U) REQUIREMENT FOR REASONABLENESS (U) By the terms of the Fourth Amendment, a search must be reasonable at its inception and reasonable in its execution. Whether a search meets Fourth Amendment standards will depend on the justification for the search and the scope of the search conducted. In all investigations, FBI employees must be prepared to articulate the basis for the search and the manner in which it was conducted. 18.7.1.3.2 (U) REASONABLE EXPECTATION OF PRIVACY (U) The right of privacy is a personal right, not a property concept. It safeguards whatever an individual reasonably expects to be private. The protection normally includes persons, residences , vehicles, other personal property, private conversations, private papers and records. The Supreme Court has determined that there is no reasonable expectation of privacy in certain areas or information. As a result, government intrusions into those areas do not constitute a search and, thus, do not have to meet the requirements of the Fourth Amendment. These areas include: (i) open fields; (ii) prison cells; (iii) public access areas; and (iv) vehicle identification numbers. The Supreme Court has also determined that certain governmental practices do not involve an intrusion into a reasonable expectation of privacy and, therefore, do not amount to a search. These practices include: (i) aerial surveillance conducted from navigable airspace; (ii) field test of suspected controlled substance; and (iii) odor detection. A reasonable expectation of privacy may be terminated by an individual taking steps to voluntarily relinquish the expectation of privacy, such as abandoning property or setting trash at the edge of the curtilage or beyond for collection. 18.7.1.3.3 (U) ISSUANCE OF SEARCH WARRANT (U) Under FRCP Rule 41, upon the request of a federal law enforcement officer or an attorne y for the government, a search warrant may be issued by: A) (U) a federal magistrate judge, or if none is reasonably available, a judge of a state court of record within the federal district, for a search of property or for a person within the district ; Version Dated: October 15, 2011 18-152 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 B) (U) a federal magistrate judge for a search of property or for a person either within or outside the district if the property or person is within the district when the warrant is sought but might move outside the district before the warrant is executed; C) (U) a federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district, in an investigation of domestic terrorism or international terrorism (as defined in 18 U.S.C. § 2331 ); and D) (U) a magistrate with authority in the district to issue a warrant to install a tracking device. The warrant may authorize use of the device to track the movement of a person or property located within the district, outside, or both. (U) Physical searches related to a national security purpose may be authorized by the FISC. (50 U.S.C. §§ 1821-1829) 18.7.1.3.4 (U) PROPERTY OR PERSONS THAT MAY BE SEIZED WITH A WARRANT (U) A warrant may be issued to search for and seize any: (i) property that constitutes evidence of the commission of a criminal offense; (ii) contraband, the fruits of crime, or things otherwise criminally possessed; or (iii) property designed or intended for use or that is or has been used as the means of committing a criminal offense. In addition to a conventional search conducted following issuance of a warrant, examples of search warrants include: 18. 7.1.3.4.1 (U) ANTICIPATORY WARRANTS (U) As the name suggests, an anticipatory warrant differs from other search warrants in that it is not supported by probable cause to believe that contraband exists at the premises to be searched at the time the warrant is issued. Instead, an anticipatory search warrant is validly issued where there is probable cause to believe that a crime has been or is being committed, and that evidence of such crime will be found at the described location at the time of the search, but only after certain specified events transpire. These conditions precedent to the execution of an anticipatory warrant, sometimes referred to as "triggering events," are integral to its validity. Because probable cause for an anticipatory warrant is contingent on the occurrence of certain expected or "triggering" events, typically the future delivery, sale, or purchase of contraband, the judge making the probable cause determination must take into account the likelihood that the triggering event will occur on schedule and as predicted. Should these triggering events fail to materialize, the anticipatory warrant is void. 18.7.1.3.4.2 (U) SNEAK AND PEEK SEARCH WARRANTS (U) A sneak and peek search warrant allows law enforcement agents to surreptitiously enter a location such as a building, an apartment, garage, storage shed, etc., for the purpose of looking for and documenting evidence of criminal activity. The purpose of this type of warrant is to search for and seize property (either tangible or intangible) without immediately providing notice of the search and a return on the warrant to the owner of the property searched or seized. See FRCP 41(f)(3). A sneak and peek warrant is used to gather additional evidence of criminal activity without prematurely exposing an 18-153 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 on-going investigation. The evidence discovered during a sneak and peek search may be used to support a request for a conventional search warrant. 18.7.1.3.4.3 (U) MAIL OPENINGS (U) Mail in United States postal channels may be searched only pursuant to court order, or presidential authorization. United States Postal Service regulations governing such activities must be followed. A search of items that are being handled by individual couriers, or commercial courier companies, under circumstances in which there is a reasonable expectation of privacy, or have been sealed for deposit into postal channels, and that are discovered within properties or premises being searched, must be carried out according to unconsented FISA or FRCP Rule 41 physical search procedures. 18. 7.1.3.4.4 (U) COMPELLED DISCLOSURE OF THE CONTENTS OF STORED WIRE OR ELECTRONIC COMMUNICATIONS (U) Contents in "electronic storage" (e.g., unopened e-mail/voice mail) require a search warrant. See 18 U.S.C. § 2703(a). A distinction is made between the contents of communications that are in electronic storage (e.g., unopened e-mail) for less than 180 days and those in "electronic storage" for longer than 180 days, or those that are no longer in "electronic storage" (e.g., opened e-mail). In enacting the ECPA, Congress concluded that customers may not retain a "reasonable expectation of privacy" in information sent to network providers. However, the contents of an e-mail message that is unopened should nonetheless be protected by Fourth Amendment standards, similar to the contents of a regularly mailed letter. On the other hand, if the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment. If a search warrant is used, it may be served on the provider without notice to the customer or subscriber. 18. 7.1.3.4.4.1 (U) SEARCH WARRANT (U//FOUO) Investigators can obtain the full contents of a network account with a search warrant. ECP A does not require the government to notify the customer or subscriber when it obtains information from a provider using a search warrant. Warrants issued under 18 U.S.C. § 2703 must either comply with FRCP Rule 41 or be an equivalent state warrant. Warrants issued pursuant to 18 U.S.C. § 2703 do not require personal service on the customer; the warrants are only be served on the electronic communication service or a remote computing service. FRCP Rule 41 requires a copy of the warrant be left with the provider, and a return and inventory be made. Federal courts have nationwide jurisdicti on to issue these search warrants (see below). (U) With a search warrant issued based on probable cause pursuant to FRCP Rule 41 or an equivalent state warrant, the government may obtain: Version Dated: October 15, 2011 18-154 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 A) (U) The contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for one hundred and eighty days or less, and B) (U) Everything that can be obtained using a 18 U.S.C. § 2703(d) court order with notice. (U) In other words, every record and all of the stored contents of an account-including opened and unopened e-mail/voice mail- can be obtained with a search warrant based on probable cause pursuant to FRCP Rule 41. Moreover, because the warrant is issued by a neutral magistrate based on a finding of probable cause, obtaining a search warrant effectively insulates the process from challenge under the Fourth Amendment. 18. 7.1.3.4.4.2 (U) NATIONWIDE SCOPE (U) Search warrants under 18 U.S.C. § 2703(a) may be issued by a federal "court with jurisdiction over the offense under investigation," and may be executed outside the district of the issuing court for material responsive to the warrant. State courts may also issue warrants under 18 U.S.C. § 2703(a), but the statute does not give these warrants effect outside the issuing court's territorial jurisdiction. As with any other FRCP Rule 41 warrant, investigators must draft an affidavit and a proposed warrant that complies with FRCP Rule 41. 18. 7.1.3.4.4.3 (U) SERVICE OF PROCESS (U) 18 U.S.C. § 2703(a) search warrants are obtained just like any other FRCP Rule 41 search warrant but are typically served on the provider and compel the provider to find and produce the information described in the warrant. ECP A expressly states that the presence of an officer is not required for service or execution of a search warrant issued pursuant to 18 U.S.C. § 2703(a). 18. 7.1.3.4.4.4 (U) COURT ORDER WITH PRIOR NOTICE TO THE SUBSCRIBER OR CUSTOMER (U//FOUO) Investigators can obtain everything in a network account except for unopened e-mail or voice-mail stored with a provider for 180 days or less using a 18 U.S.C. § 2703(d) court order with prior notice to the subscriber unless they have obtained authority for delayed notice pursuant to 18 U.S.C. § 2705. ECPA distinguishes between the contents of communications that are in "electronic storage" (e.g., unopened e-mail) for less than 180 days, and those that have been in "electronic storage" for longer or that are no longer in "electronic storage" (e.g., opened e-mail). (U) FBI employees who obtain a court order under 18 U.S.C. § 2703(d), and either give prior notice to the subscriber or comply with the delayed notice provisions of 18 U.S.C. § 2705(a), may obtain: A) (U) "The contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days." 18 U.S.C. § 2703(a). 18-155 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 B) (U) "The contents of any wire or electronic communication"held by a provider of remote computing service "on behalf of ... a subscriber or customer of such remote computing service," 18 U.S.C. §§ 2703(b)(1)(B)(ii), 2703 (b)(2); and C) (U) Everything that can be obtained using a 18 U.S.C. § 2703(d) court order without notice. (U) As a practical matter, this means that the government can obtain all associated subscriber and transactional records and the full contents of a subscriber's account except unopened e-mail and voicemail (that has been in "electronic storage" 180 days or less) using a 18 U.S.C. § 2703(d) order that complies with the prior notice provisions of 18 U.S.C. § 2703(b)(l)(B). (U) If notice would jeopardize the investigation, FBI employees can obtain an order delaying notice for up to ninety days. See 18 U.S.C. § 2705(a). A request to delay notice may be included in the 18 U.S.C. § 2703( d) application and proposed order. FBI employees may also apply to the court for extensions of the delay. See 18 U.S.C. §§ 2705(a)(l)(A) and 2705(a)(4). Upon expiration of the delayed notice period, the government is required to send a copy of the request or process along with a letter explaining the delayed notice to the customer or subscriber. See 18 U.S.C. § 2705(a)(5). 18. 7.1.3.4.4.5 (U) LEGAL STANDARD (U) To order delayed notice, the court must find that "there is reason to believe that notification of the existence of the court order may ... endanger the life or physical safety of an individual; [lead to] flight from prosecution; [lead to] destruction of or tampering with evidence; [lead to] intimidation of potential witnesses; or ... otherwise seriously jeopardiz[e] an investigation or unduly delay[] a trial." 18 U.S.C. §§ 2705(a)(l)(A) and 2705(a)(2) . The applicant must satisfy this standard anew each time an extension of the delayed notice is sought. 18. 7.1.3.4.4.6 (U) NATIONWIDE SCOPE (U) Federal court orders under 18 U.S.C. § 2703( d) have effect outside the district of the issuing court. Orders issued pursuant to18 U.S .C. § 2703(d) may compel providers to disclose information even if the information is stored outside the district of the issuing court. See 18 U.S.C. § 2703( d) ("any court that is a court of competent jurisdiction" may issue a 18 U.S.C. § 2703[d] order); 18 U.S.C. § 2711(3) (court of competent jurisdiction includes any federal court having jurisdiction over the offense being investigated without geographic limitation). (U) 18 U.S.C. § 2703( d) orders may also be issued by state courts. See 18 U.S.C. §§ 2711(3), 3127(2)(B). Such orders issued by state courts, however, do not have effect outside the jurisdiction of the issuing state. See 18 U.S.C. §§ 2711(3). 18. 7.1.3.4.4. 7 (U) COURT ORDER WITHOUT PRIOR NOTICE TO THE SUBSCRIBER OR CUSTOMER (U) A court order under 18 U.S.C. § 2703(d) may compel disclosure of: Verswn Dated: October 15, 2011 18-156 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 A) (U) All "record(s) or other information pertaining to a subscriber to or customer of such service (not including the contents of communications [held by providers of electronic communications service and remote computing service])," and B) (U) Basic subscriber information that can be obtained using a subpoena without notice. 18 U.S.C. § 2703(c)(l). 18.7.1.4 (U) APPROVAL REQUIREMENTS FOR INVESTIGATIVE METHOD A) (U//FOUO) Search warrants issued under authority o{FRCP Rule 41: A warrant to search is issued by a federal magistrate ( or a state court judge if a federal magistrate is not reasonably available). Coordination with the USAO or DOJ is required to obtain the warrant. B) (U//FOUO) FISA: In national security investigations, field office requests for FISA authorized physical searches must be submitted to FBIHQ using the FBI FISA Request Fonn. Field office requests for PISA approval are tracked through FISAMS. This form should be completed by the case agent. C) (U//FOUO) Sensitive Investigative Matters (SIM): Notice to the appropriate FBIHQ operational Unit Chief and Section Chief is required if the matter under investigation is a sensitive investigative matter. Notice to DOJ is also required, as described in DIOG Section 10. 18.7.1.5 (U) DURATION OF APPROVAL (U) The duration for the execution of a warrant is established by the court order or warrant. 18.7.1.6 (U) SPECIFIC 18.7.1.6.1 18. 7.1.6.1.1 PROCEDURES (U) OBTAIN/NGA WARRANTUNDERFRCP RULE41 (U) PROBABLE CAUSE (U// FOUO) After receiving an affidavit or other information, a magistrate judge or a judge of a state court of record must issue the warrant if there is probable cause to search for and seize a person or property under FRCP Rule 41 ( c ). Probable cause exists where "the facts and circumstances within the FBI employee's knowledge, and of which they had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that ... " a crime has been or is being committed, and that sizable property can be found at the place or on the person to be searched. Probable cause is a reasonable belief grounded on facts. In judging whether a reasonable belief exists, the test is whether such a belief would be engendered in a prudent person with the officer's training and experience. To establish probable cause, the affiant must demonstrate a basis for knowledge and belief that the facts are true and that there is probable cause to believe the items listed in the affidavit will be found at the place to be searched. 18.7.1.6.1.2 (U) REQUESTING AW ARRANT IN THE PRESENCE OF A JUDGE A) (U) Warrant on an Affldavit: When a federal law enforcement officer or an attorney for the government presents an affidavit in support of a warrant, the judge may require the affiant to 18-157 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers1or lated Octof)er L'> LJL UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 appear personally and may examine under oath the affiant and any witness the afftant produces. B) (U) Warrant on Sworn Testimony: The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances . C) (U) Recording Testimony: Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit. 18.7.1.6.1.3 (U) REQUESTING AW ARRANT BY TELEPHONIC OR OTHER MEANS A) (U) In General: A magistrate judge may issue a warrant based on information communicated by telephone or other appropriate means , including facsimile transmission. B) (U) Recording Testimony: Upon learning that an applicant is requesting a warrant , a magistrate judge must: (i) place under oath the applicant and any person on whose testimony the application is based ; and (ii) make a verbatim record of the conversation with a suitable recording device , if available , or by a court reporter, or in writing. C) (U) Certifving Testimony: The magistrate judge must have any recording or court reporter' s notes transcribed, certify the transcription's accuracy, and file a copy of the record and the transcription with the clerk. Any written verbatim record must be signed by the magistrate judge and filed with the clerk. D) (U) Suppression Limited: Absent a finding of bad faith, evidence obtained from a warrant issued under FRCP Rule 41 (d)(3)(A) is not subject to suppression on the ground that issuin g the warrant in that manner was unreasonable under the circumstances. 18.7.1.6.1.4 (U) ISSUING THEW ARRANT (U) In general, the magistrate judge or a judge of a state court of record must issue the warrant to an officer authorized to execute it. The warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to: (i) execute the warrant within a specified time no longer than 10 days; (ii) execute the warrant during the daytime , unless the judge for good cause expressly authorizes execution at another time; and (iii) return the warrant to the magistrate judge designat ed in the warrant. 18.7.1.6.1.5 (U) WARRANT BY TELEPHONIC OR OTHER MEANS (U) If a magistrate judge decides to proceed under FRCP Rule 41 (d)(3)(A) , the following additional procedures apply: A) (U) Preparing a Proposed Duplicate Original Warrant: The applicant must prepar e a "proposed duplicate original warrant" and must read or otherwise transmit the content s of tha document verbatim to the magistrate judge. B) (U) Preparing an Original Warrant: The magistrate judge must enter the content s of the proposed duplicate original warrant into an original warrant. Version Dated: October 15, 2011 18-158 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 C) (U) Modifications: The magistrate judge may direct the applicant to modify the proposed duplicate original warrant. In that case , the judge must also modify the original warrant. D) (U) Signing the Original Warrant and the Duplicate Original Warrant: Upon determining to issue the warrant, the magistrate judge must immediately sign the original warrant, enter on its face the exact time it is issued , and direct the applicant to sign the judge's name on the duplicate original warrant. 18.7.1.6.1.6 (U) EXECUTING AND RETURNING THE WARRANT A) (U) Noting the Time: The officer executing the warrant must enter on its face the exact date and time it is executed. B) (U) Inventory: An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. C) (U) Receipt: The officer executing the warrant must: (i) give a copy of the warrant and a receipt for the property taken to the person from whom , or from whose premises, the property was taken; or (ii) leave a copy of the warrant and receipt at the place where the officer took the property. D) (U) Return: The officer executing the warrant must promptly return it - together with a copy of the inventory - to the magistrate judge designated on the warrant. The judge must, on request , give a copy of the inventory to the person from whom, or from whose premises , the property was taken and to the applicant for the warrant. 18.7.1.6.1.7 (U) FORWARDING PAPERS TO THE CLERK (U) The magistrate judge to whom the warrant is returned must attach to the warrant a copy of the return , the inventory, and all other related papers and must deliver them to the clerk in the district where the property was seized . (FRCP Rule 41) 18.7.1.6.1.8 (U) WARRANT FOR A TRACKING DEVICE A) (U) Noting the Time: The officer executing a tracking device warrant must enter on it the exa ct date and time the device was installed and the period during which it was used . Return: Within 10 calendar days after the use of the tracking device has ended , the officer exec uting the warrant must return it to the judge designated in the warrant. 8) (U) C) (U) Service: Within 10 calendar days after use of the tracking device has ended , the officer exec uting the warrant must serve a copy of the warrant on the person who was tracked . Service may be accomplished by delivering a copy to the person who , or whose property was tracke d; or by leaving a copy at the person's residence or usual place of abode with an indiv idual of suitable age and discretion who resides at that location and by mailing a copy to the person's last known address. Upon request of the government , the judge may delay notice as prov ided in FRCP Rule 4l(f)(3). 18-159 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated· October lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18. 7.1.6.1.9 (U) DELAYED NOTICE (U) Upon the government's request, a magistrate judge-or if authorized by FRCP Rule 41 (b ), a judge of a state court of record - may delay any notice required by FRCP Rule 41 if the delay is authorized by statute. 18.7.1.6.2 (U) OBTAIN/NGA FISA WARRANT (U) Applications for court-authorized physical search pursuant to FISA must be made by a federal officer in writing upon oath or affirmation and with the specific approval of the Attorney General. (See 50 U.S.C. § 1823). 18. 7.1.6.2.1 (U) CERTIFICATE BY THE DIRECTOR OF THE FBI (U) Each FISA application must be accompanied by a Certification by the Director of the FBI or one of nine other individuals authorized by Congress or the President to provide such certifications that: the information being sought is foreign intelligence information; that a significant purpose of the search is to obtain foreign intelligence information; that such information cannot reasonably be obtained by normal investigative techniques; that the information sought is "foreign intelligence information" as defined by FISA. The certification must include a statement explaining the certifier's basis for the certification. (U) 50 U.S.C. § 1823 specifies the Assistant to the President for National Security Affairs; E.O. 12139 as amended by E.O. 13383 specifies the Director of the FBI, Deputy Director of the FBI, the Director of National Intelligence, the Principal Deputy Director of National Intelligence, the Director of the Central Intelligence Agency, the Secretary of State, the Deputy Secretary of State, the Secretary of Defense, and the Deputy Secretary of Defense as appropriate officials to make certifications required by FISA. The FBI Director has represented to Congress that the FBI deputy Director will only certify FISA ' s when the FBI Director is not available to do so. 18. 7.1.6.2.2 (U) LENGTH OF PERIOD OF AUTHORIZATION FOR FISC ORDERS (U) Generally, a FISC Order approving an unconsented physical search will specify the period of time during which physical searches are approved and provide that the government will be permitted the period of time necessary to achieve the purpose , or for 90 days, whichever is less, except that authority may be: A) (U) For no more than one year for "Foreign Power" targets (establishments); or B) (U) For no more than 120 days for a non-USPER agent of a foreign power, with renewals for up to one. 18.7.1.6.2.3 (U) EXTENSION OF PHYSICAL SEARCH AUTHORITY (U//FOUO) An extension of physical search authority may be granted on the same basis as the original order upon a separate application for an extension and upon new finding s made in the same manner as the original order. Version Da,ed OLtObH 15, 2011 18-160 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.7.1.6.2.4 §18 (U) EMERGENCY FISA AUTHORITY A) (U) The Attorney General may authori ze an emergency physical search under PISA when he reasonably makes a determination that an emergency situation exists that precludes advance PISA court review and approval , and there exists a factual predication for the issuance of a PISA Court Order. In such instances , a FISC judge must be informed by the Attorney General or his designee at the time of the authorization and an application according to PISA requirements is submitted to the judge as soon as is practicable but not more than seven (7) days after the emergency authority has been approved by the Attorney General. B) (U) If a court order is denied after an emergency authorization has been initiated , no information gathered as a result of the search may be used in any manner except if with the approval of the Attorney General , the information indicates a threat of death or serious bodily harm to any person. C) (U//FOUO) For an emergency PISA for physical search , DOJ 01 can be reached during regular business hours at (202) 514-5600 or through secure or through the DOJ Command Center at (202) 514-5000 at any time . 18.7.1.6.2.5 (U) SPECIAL CJRCUMST ANCES (U) The President through the Attorney General may also authorize a physical search under FISA without a court order for periods ofup to one year, if the Attorney General certifies that the search will be solely directed at premises , information , material , or property that is used exclusively by or under the open and exclusive control of a foreign power; there is no substantial likelihood that the physical search will involve the premises , information , material , or property of a United States person ; and there are minimization procedures that have been reported to the court and Congress. The FBI's involvement in such approvals is usually in furtherance of activities pursued according to E.O. 12333. Copies of such certifications are to be transmitted to the FISA Court. See 50 U.S.C . § 1822[a]. (U) Information concerning USPERs acquired through unconsented physical searches may only be used according to minimization procedures. See: 50 U.S.C. §§ 1824(d)(4) and 1825(a). 18.7.1.6.2.6 (U) REQUIRED NOTICE (U) If an authorized search involves the premises of an USPER , and the Attorney General determines that there is no national security interest in continuing the secrecy of the search, the Attorney General must provide notice to the USPER that the premises was searched and the identification of any property seized , altered , or reproduced during the search . 18.7.1.6.2.7 (U//FOUO) FISA VERIFICATION OF ACCURACY PROCEDURES (U//FOUO) The accuracy of information contained within FISA applications is of utmost importance and must be reviewed in accordance with the FISA Accuracy Policy Implementation Guide . 18-161 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dattcl. Oc'"Ob<'r1S. ?0';. l UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) Only documented and verified information may be used to support FBI applications to the court. In addition to the certifications required through FISAMS, the following administrative procedures must be followed for every FISA application : A) (U//FOUO) Each investigative file for which an application is prepared for submission to the FISC must include a FISA Accuracy sub-file. This sub-file must be used for copies of all of the supporting documentation relied upon when making the certifications contained on the FISA Verification Form ("Woods Form"), which is available in the Forms section of the NSLB library at http://home.fbinet.fbi /DO/OGC/Main%20Law %20Library/Forms/NSLB%20L ibrary.aspx. A FISA accuracy sub-file must include: 1) (U//FOUO) FBI database checks that were conducted to determine whether the target of the proposed FISA is also the subject of an FBI criminal investigation, past or present; 2) (U//FOUO) CHS file checks (DELTA, 134, 137, 270, and 307 files) that were conducted to determine whether the target has, or has had, a relationship with the FBI as a CHS; and 3) (U//FOUO) Copies of the most authoritative documents that exist for each fact asserted in the application. The most authoritative document may be a cable, EC, letterhead memorandum (LHM), FJSA intercept ("tech cut"), etc. The agent must use some judgment in ascertaining appropriate documentation, but, in general, the agent should attempt to get as close as possible to original documentation of a fact. For example, if the target's immigration status is summarized in an EC, the agent should strive to obtain a copy of the underlying immigration document to verify the fact(s) asserted rather than relying on the EC. Similarly, if the application states that a National Security Letter (NSL) was served on a certain date, there should be a copy of the NSL in the subfile instead of the EC that states an NSL was served. For more guidance on this issue, see FISA Accuracy PG at: http ://home /fonns /fd 1028 /Policy % 20and %20Guid ance%20 Library/03 94 PG. pdf B) (U//FOUO) Every FISA application is subject to review through two oversight mechanisms designed to ensure that FBI field offices take appropriate steps regarding the factual accuracy of statements to the FISC. First, CDCs in the field are required to conduct accuracy reviews of limited numbers of FISAs in accordance with procedures established by the General Counsel. Second, 01 attorneys conduct accuracy reviews with CDC and NSLB participation on approximately an annual basis. A full description of each of these reviews can be found in the FISA Accuracy PG at: http ://home /forms /fd1028 /Policy %20and %20Guidance %20Library /0394PG.pdf 18.7.1.6.2.8 (U) USE OF FISA DERIVED INFORMATION IN OTHER PROCEEDINGS (U//FOUO) There are statutory (50 U.S.C. Sections 1806, 1825, and 1845) and Atto me~ General (AG) policy restrictions on the use of information derived from a FISA ELS R. physical search, or PR/TT. These restrictions apply to and must be followed by an yone "who may seek to use or disclose FISA information in any trial , hearing, or other proceeding in or before any court, department, officer, agency, regulatory body , or othe r authority of the United States .... " See DIOG Appendix E for the AG Memo, Re v ised Policy on the Use or Disclosure ofFISA Information, dated 01-10-2008. The guid ance the AG's Memo establishes notification/approval procedures which must be strictl y followed. Though not contained in the AG Memo, FBI policy requires that use auth on . be obtained for foreign proceedings as well. Questions concerning the FISA us e polic: Version Dated· October 15, 2011 UNCLASSIFIED 18-162 - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 requests for assistance in obtaining FISA use authority from the AG should be directed to NSLB's Classified Litigation Support Unit. (U//FOUO) The United States must, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or use that information or submit it into evidence, notify the "aggrieved person" [as defined in 50 U.S.C. Sections 1801(k), 1821(2), or 1841(2)], and the court or other authority in which the information is to be disclosed or used, that the United States intends to disclose or use such information. See 50 U.S.C. Sections 1806(c), 1825(d), and 1845(c). 18.7.1.6.2.9 (U//FOUO) FISA PHYSICAL SEARCH ADMINISTRATJVE SUB-FILE (U//FOUO) Each investigative file for which an application is or has been prepared for submission to the FISC will include a sub-file to be labeled FISA Physical Search Administration Sub-File. This sub-file is to contain copies of all applications to and orders issued by the FISC for the conduct of physical searches in the investigation. The following data must be included in this FISA Physical Search Administrative Sub-file: A) (U/ /FOUO) The identities of the persons or entities that are the subject of the physical search; and B) (U//FOUO) The description of the premises or property that is the subject of the physical search. 18.7.1.6.2.10 (U//FOUO) FISA RENEWALS (U//FOUO) A FISA Review Board has been established that is responsible for reviewing, on a monthly basis, those FISAs (other than certain FISAs from the Counterintelligence Division) , that have been maintained for more than one year. The FISA Review Board meeting schedule and required justifications for requests for continued renewal are contained and processed through FISAMS . (U//FOUO) The Board assesses the quality and quantity of foreign intelligence that has been generated by the FISA; the continued need for the foreign intelligence that is being generated by the coverage; the strategy and timing of any criminal prosecution that might be contemplated against the target; any backlog in translation of the results of the surveillance; and the relative risk to national security if the FISA is not renewed. (U//FOUO) The Board will provide an explanation of the reason for denying permission to renew a FISA. If there is a dissenting opinion, the request to renew and the Board's position will be forwarded to the EAD NSB for an expeditious review. The Review Board's decision on renewals with dissenting opinions will be final, unless overruled by the EAD NSB. 18. 7.1.6.2.10.1 (U) APPEALING THE DECISION OF THE REVIEW BOARD (U//FOUO) Should the field office responsible for a FISA disagree with the decision of the Board, the field office may present his or her position , by EC, to the Assistant Director (AD) responsible for the FISA. The AD will consider the merits of any additional information not previously submitted in writing to the Board and may choose 18-163 UNCLASSIFIED - FOR OFFICIAL USE ONLY \lers Octo", Dutect: 1 >,20 11 Oil UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 to present a written appeal (EC) for further consideration to the EAD NSB. An EC documenting the decision of the EAD must be provided to the field office promptly upon the EAD's NSB final decision. 18.7.1.6.2.11 {U) COMPLIANCE AND MONITORING FOR FISA (U//FOUO) All compliance issues related to FISA physical search must be reported to the Unit Chief of OGC National Security Law Policy and Training Unit, or successor position (soon to be renamed the OGC National Security Law Compliance, Oversight , and Training Unit) . 18.7.1.6.2.12 {U) FISA 0VERCOLLECT10N (U//FOUO) In accordance with Foreign Intelligence Surveillance Court (FISC) Rule of Procedure 15, information acquired outside of the scope of the FISA authorization ("FISA overcollection") will no longer be sequestered with the FISC , absent extraordinary circumstances. Contact NSLB for further guidance regarding the handling of any FISA overcollection. Vers10n Dated October 15, 2011 18-164 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18. 7.2 18.7.2.1 §18 (U) INVEST/GATIVEMETHOD: ELECTRONICSURVEILLANCE- TITLE III (U) SUMMARY (U//FOUO) Electronic Surveillance (ELSUR) under Title III is a valuable investigative method. It is, also, a very intrusive means of acquiring information relevant to the effective execution of the FBI's law enforcement. To ensure that due consideration is given to the competing interests between law enforcement and the effect on privacy and civil liberties, this section contains various administrative and management controls beyond those imposed by statute and DOJ guidelines. Unless otherwise noted, it is the responsibility of the case agent and his/her supervisor to ensure compliance with these instructions. Title III ELSUR is only authorized as an investigative method in the conduct of Full Investigations. Title III ELSUR requires: (i) administrative or judicial authorization prior to its use; (ii) contact with the field office ELSUR Technician to coordinate all necessary recordkeeping; and (iii) consultation with the Technical Advisor (TA) or a designated TTA to determine feasibility, applicability, and use of the appropriate equipment. (U//FOUO) Application: Title III ELSUR may be used in a Full (criminal) Investigation. This method may not be used for: (i) an Assessment or Preliminary Investigation; or (ii) providing assistance to other agencies, unless there is already an FBI Title III related to the request for assistance. When providing assistance to a foreign agency, information must be provided pursuant to the FBI's Foreign Dissemination Manual. 18.7.2.2 (U) LEGALAUTHORITY (U) Title III ELSUR is authorized by chapter 119, 18 U.S.C. §§ 2510-2522 (Title III of the Omnibus and Safe Streets Act of 1968). 18.7.2.3 (U) DEFINITIONOF INVESTIGATIVEMETHOD (U) Title III ELS UR is the non-consensual electronic collection of information (usually communications) under circumstances in which the parties have a reasonable expectation of privacy and court orders or warrants are required. 18.7.2.4 (U) TITLE III GENERALLY (U) With the prior approval of the Attorney General, or Attorney General's designee, the United States Attorney, by and through an AUSA, or the Strike Force Attorney, may apply to a federal judge for a court order authorizing the interception of wire, oral, or electronic communications relating to one or more of the offenses listed in Title III (18 U.S.C. § 2516). Judicial oversight continues throughout the operational phase of the electronic surveillance including the installation, monitoring, and handling of recording media. (U) For purposes of obtaining review and approval for use of the method, Title III applications are considered to be either "sensitive" or "non-sensitive." The requirements for each are set forth below. 18-165 UNCLASSIFIED - FOR OFFICIAL USE ONLY VE.rs1on Dated October 15, 2011 §18 18.7.2.5 UN CLAS SIFTED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (U) STANDARDSFORUSE AND APPROVALREQUIREMENTSFORNON-SENSITIVE TITLE Ills (U//FOUO) An SAC is the authorizing official to approve all requests for "non-sensitive" Title III orders, including original, extension, and renewal applications. SAC approval of all extensions and renewals is required to ensure that field office managers will allocate the resources necessary to use this method. Any delegation of SAC approval authority to an ASAC under this section must be in writing. (U//FOUO) Prior to SAC approval referred to above, CDC or OGC review is required for the initial "non-sensitive" Title III order. Extensions and renewals sought within 30 days after the expiration of the original Title III order in non-sensitive Title ms do not require CDC review , unless requested by the SAC or designee . The CDC must review renewals sought more than 30 days after the expiration of the original Title III order. (U//FOUO) There may be situations or unusual circumstances requiring the FBI to adopt an already existing Title III from another federal law enforcement agency . Such adoptions may only be done on a case-by-case basis , in exceptional circumstances, and subject to the requirements set forth herein relating to CDC review and SAC approval. Should the Title III proposed for adoption involve sensitive circumstances , it must also be handled in accordance with the approval and review requirements set forth below . 18.7.2.6 (U) STANDARDSFORUSE AND APPROVALREQUIREMENTSFORSENSITIVETITLE Ills (U//FOUO) All Title III applications involving one of the seven "sensitive circumstances, " listed below , including all extensions and renewals , must be reviewed by OGC and approved by FBIHQ. The SAC, with the recommendation of the CDC , must determine whether the request involves sensitive circumstances . The term "sensitive circumstances" as used in this section relating to electronic surveillance under Title III is different from the term "sensiti ve investigative matters ," as used in conjunction with approval requirements for opening Assessments and Predicated Investigations, and is different from the term "sensitive monitoring circumstances" as used in conjunction with the approval requirements for consensual monitoring . (U//FOUO) The field office must include a copy of the completed CDC checklist (FD-926 ) when forwarding the initial sensitive Title III applications to OGC and FBIHQ for review. After the initial submission , the CDC checklist must be completed by the appropriate OGC unit for all subsequent extensions or renewals of sensitive Title Ills . (U//FOUO) Although ultimate appro val for sensitive Title Ills is at the FBIHQ level, the SAC or ASAC must continue to review and approve the use of the method for all sensitive Title III applications as it relates to the allocation of resources within their field office. (U//FOUO) The following five sensitive circumstances require the approval of a Deput y Assistant Director (DAD) or a higher level official from the Criminal Investigative Division (CID) , Cyber Division , Counterterrorism Division (CTD) , Weapons of Mass Destruction Directorate (WMDD) , or Counterintelligence Division (CD) , as appropriate: Version Dated: October 15, 2011 18-166 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 A) (U//FOUO) Significant privilege issues or First Amendment concerns (e.g., attorney-client privilege or other privileged conversations or interception of news media representatives); B) (U//FOUO) Significant privacy concerns are anticipated (e.g., placing a microphone in a bedroom or bathroom); C) (U//FOUO) Application is based on "relaxed specificity" (i.e., "roving" interception) under 18 U.S.C. § 2518(1 l)(a) and (b); D) (U//FOUO) Application concerns a Domestic Terrorism (OT), International Terrorism, or Espionage investigation; or E) (U//FOUO) Any situation deemed appropriate by the AD of CID or OGC. (U//FOUO) The following two sensitive circumstances require the approval of the Director, the Acting Director, Deputy Director, or the Executive Assistant Director (EAD) for the Criminal Cyber Response and Services Branch or National Security Branch, or the respective Assistant Director for Criminal Investigative Division (CID), Cyber Division, Counterterrorism Division (CTD), Weapons of Mass Destruction Directorate (WMDD), or Counterintelligence Division (CD): A) (U//FOUO) "Emergency" Title III interceptions (i.e., interceptions conducted prior to judicial approval under 18 U.S.C. § 2518(7)); or B) (U//FOUO) It is anticipated that conversations of members of Congress, federal judges, highlevel federal officials, high-level state executives, or members of a state judiciary or legislature will be intercepted. (U//FOUO) "Sensitive circumstances" may develop at any point in time during the course of a Title III. For example, while an initial application for interceptions might not be considered sensitive, conversations intercepted thereafter of a high-level state executive would render any subsequent spinoffs, extensions, or renewals "sensitive" Title III requests. 18.7.2.7 (U) PROCEDURESFOR EMERGENCYTITLE III INTERCEPTIONS (U//FOUO) 18 U.S.C. § 2518(7) provides that any investigative or law enforcement officer, specially designated by the Attorney General, Deputy Attorney General, or the Associate Attorney General, who reasonably determines that an emergency situation exists that requires communications to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and there are grounds upon which an order could be entered authorizing interception, may intercept such communications. (U//FOUO) Section 2518(7) postpones, rather than eliminates the need for judicial authorization. If the Attorney General, Deputy Attorney General, or the Associate Attorney General authorizes an appropriate FBI official to approve an emergency Title 111interception, an after-the-fact application for an order approving the interception must be made in accordance with Title III to the appropriate Court, and an order obtained, within 48 hours after the interception has occurred or begins to occur. (U//FOUO) All emergency interceptions must be coordinated with the Department of Justice, Office of Enforcement Operations (DOJ /OEO). No SAC or FBIHQ official has the authority on his/her own to authorize interception of wire , oral, or electronic communications, even under emergency circumstances and/or where a human life is in jeopardy. The use of 18-167 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October l S, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 emergency Title III interceptions is a "sensitive circumstance" requiring the approval of the Director, Deputy Director , EAD for the Criminal Cyber Response and Services Branch, EAD for the National Security Branch , or the respective Assistant Director for Criminal Investigative Division (CID), Cyber Division, Counterterrorism Division (CTD), Counterintelligence Division (CD), or Weapons of Mass Destruction Directorate (WMDD). · See DIOG Section 18. 7 .2.2. (U) 18 U.S.C. § 2518(7) defines an emergency situation as one involving: A) (U) immediate danger of death or serious physical injury to any person, B) (U) conspiratorial activities threatening the national security interest, or C) (U) conspiratorial activities characteristic of organized crime. (U//FOUO) In all but the most unusual circumstances, the only situations likely to constitute an emergency by the Department of Justice (DOJ) are those involving an imminent threat to life, e.g., a kidnapping, hostage taking, or imminent terrorist activity. 18.7.2.7.1 (U) OBTAINING EMERGENCY AUTHORIZATION (U//FOUO) Should a situation arise requiring emergency Title III authority, the field office, with the approval of the SAC, should do the following: A) (U//FOUO) Notify the appropriate United States Attorney's Office (USAO) to coordinate the determination of whether the facts and circumstances meet the requirements of 18 U.S.C. § 2518(7). Generally, the AUSA will contact the DOJ OEO, which will initiate and coordinate the approval process for DOJ authorization. Should an AUSA not be readily available, the field office should contact OGC, which will contact OEO directly. For emergency Title III requests involving Criminal, DT, WMD, or Cyber matters, contact should be made with the Unit Chief, Investigative Law Unit, ILTB. For emergency Title III requests involving Counterintelligence matters, contact should be made with the Unit Chief, Counterintelligence Law Unit, NSLB. For emergency Title III requests involving international terrorism matters , contact should be made with the Unit Chief, Counterterrorism Law Unit I or II, NSLB. Should contact be made directly between the FBI and OEO, the appropriate United States Attorney's Office should be notified as soon thereafter as possible. B) (U//FOUO) Telephonically advise the appropriate operational unit at FBIHQ of the emergency request and immediately submit a written Request for Emergency Title Ill, either via facsimile or via email as an attachment. A sample Request for Emergency Title III form is located in DIOG Appendix H. The Request for Emergency Title III should be filled out by the case agent or another law enforcement officer familiar with the specific facts of the investigation and shall include a concise written statement of the facts, circumstances, and probable cause supporting the request for interception, as well as an indication of the nature of the emergenc~ (i.e., immediate danger of death or serious physical injury to any person). The operational FBIHQ unit will then convey the facts and circumstances supporting the request to OGC to determine whether the statutory requirements for an emergency and probable cause for an interception exist. If emergency authority is determined to be appropriate, the operational uni· will then take the steps necessary to present the request to the Director, or his designee for approval. C) (U//FOUO) During off-duty hours, requesting field offices should direct emergency Title III requests to the FBI's Strategic Information and Operations Center (SIOC), which will conta · Version Dated: October 15, 2011 UNCLASSIFIED 18-168 - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 the appropriate operational unit. Unless time does not permit, OGC concurrence should be obtained during off-duty hours as well. D) (U//FOUO) Notify the TA and the TT A to coordinate technical equipment requirements. (U//FOUO) While the FBIHQ operational unit is processing the emergency Title III request for approval, OEO will be doing the same. If DOJ agrees to the request, OEO will contact FBIHQ and the AUSA to advise it of that fact. The Director, or his designee will then contact the AG or his designee personally and request authorization to make the final probable cause determination and to authorize electronic surveillance pursuant to 18 U .S.C. § 2518(7). The Director , Acting Director, or his designee will then notify the operational unit of the exact time the AG or his designee granted authority to proceed. The individual in the operational unit at FBIHQ who receives the information regarding the AG authority to proceed must note the exact time of the authorization on the "Emergency Electronic Surveillance Authorization Verification Form ." The form is at: Emergency Electronic Surveillance Authorization Verifica tion The operational unit must then contact OEO and relay this information . OEO is responsible for recontacting the AUSA to advise him/her when the 48-hour period began. 18.7.2.7.2 (U) Posr-EMERGENCYAUTHORIZATION (U/FOUO) Once the AG or his designee has authorized the Director, or his designee to make the determination whether to proceed with the emergency Title III, the government has 48 hours (including weekends and holidays) from the time the AG granted authorization to apply for a court order approving the interception. The field office , in coordination with the AUSA , must immediately begin preparing an affidavit, application and proposed order for court authorization. (U/FOUO) The affidavit in support of the after-the-fact application to the court for an order approving the emergency interception must contain only those facts known to the AG or his designee at the time the emergency interception was approved. The application must be accompanied by the "Emergency Electronic Surveillance Authorization Verification" form, which must reflect the date and time of the emergency authorization . (U/FOUO) The government may also request , at the time it files for court-authorization for the emergency, court-authorization to continue the interception beyond the initial 48 hour period. If continued authorization is sought at the same time, one affidavit may be submitted in support of both requests . However, the affidavit must clearly indicate what information was communicated to the AG or his designee at the time the emergency interception was approved and what information was developed thereafter. Two separate applications and proposed orders should be submitted to the court in this situation - one set for the emergency and one set for the extension. If continued interceptions are not being sought , no further authorization is needed from OEO. The AUSA should , however, still submit the application , affidavit, and order to OEO for review . If continued interceptions are sought, that application, affidavit, and order must be reviewed by OEO and approved by DOJ like any other Title III request. In either situation , the affidavit must also be submitted through the operational unit for OGC review, when time allows. (U/FOUO) DOJ policy provides that if the AG or his designee authorizes the Director , or his designee to approve an emergency Title Ill interception , a court order should be sought by filing the affidavit and application, regardless of whether an interception occurs. In the event 18-169 UNCLASSIFIED - FOR OFFICIAL USE ONLY Versio 1 Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 that the need for electronic surveillance is eliminated following authorization but prior to the installation and activation of the technical equipment , the submission of an affidavit and application is not necessary . (U/FOUO) Pursuant to 18 U.S.C . § 2518(7) , in the absence of a court order , interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied , whichever is earlier. In the event an application for approval is denied , or in any other case where the interception is terminated without an order having been issued, the contents of any wire , oral, or electronic communication intercepted shall be treated as having been obtained in violation of Title III, and an inventory shall be served on the person named in the application. (U/FOUO) The following sample forms are available for use in connection with an emergency Title III request: A) (U/FOUO) Emergency Title Ill Protocol Checklist for CDCs B) (U/FOUO) Request for Emergency Title III C) (U/FOUO) Emergency Electronic Surveillance Authorization Verification (U/FOUO) In addition , sample pleadings can be found on the DOJ Net website for the DOJ Electronic Surveillance Unit , or in the DOJ Electro nic Survei llance Manual , including : A) (U/FOUO) Application for Approval of Emergency Interception of Oral , Wire, or Electroni c Communications under 18 U.S .C. § 2518(7) B) (U/FOUO) Affidavit in Support of Application for Approval of Emergency Interception of Wire , Oral , or Electronic Communications under 18 U.S.C. § 2518(7) C) (U/FOUO) Order Approving Emergency Interception of Wire , Oral , or Electronic Communications under 18 U .S.C. § 2518(7) 18.7.2.8 (U) PRE-TITLE Ill ELECTRONIC SURVEILLANCE (ELSUR) SEARCH POLICY (U/FOUO) 18 U.S.C § 2518(1 )( e) requires that each application for an order to intercept wire. oral, or electronic communications (hereinafter "Title III") contain a statement describing all previous applications for Title III surveillance of the same persons , facilities , or places nam ed in the current application . The policy in this DIOG is designed to conform with this statuto ry requirement , clarify any past confusion , and address the effects on the previous search poli cy resulting from the recent elimination of the requirement for an agency Action Memorandum by the DOJ OEO . This DIOG policy supersedes the March 5, 2003 Director's Memorandu m to All Special Agents in Charge Re: Pre-Title III Electronic Surveillance (ELSUR) Search Policy , and the April 14, 2008 , All Field Offices EC from RMD, Case ID# 321B-HQCl 186218. (U) For specific details on how to conduct and document such ELSUR searches, see Appendix H. Version Dated October 15, 2011 18-170 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.7.2.9 §18 (U) DURATIONOFAPPROVALFORTITLE Ill (U) Court orders issued pursuant to Title III are for a period not to exceed 30 days. An "extension" order may be sought to continue monitoring beyond the initial 30-day period without a lapse in time. When a break in coverage has occurred, a "renewal" order may be sought to continue monitoring the same interceptees and facilities identified in the original order. The affidavit and application in support of an extension or renewal must comply with all of the Title III requirements, including approval of the Attorney General or designee. 18.7.2.10 (U) SPECIFICPROCEDURESFORTITLE Ill AFFIDAVITS (U//FOUO) The requirements in 18 U.S.C. § 2518 must be followed when preparing a Title III affidavit. The Title III affidavit must include the following information: A) (U//FOUO) The identity and qualifications of the affiant must be articulated; B) (U//FOUO) For the interception of wire or oral communications, the affidavit must establish probable cause to believe a violation of at least one of the offenses enumerated in 18 U.S.C. § 2516(1) has been, is being, or will be committed. For the interception of electronic communications, the affidavit must establish probable cause to believe that some federal felony has been, is being, or will be committed; C) (U//FOUO) The affidavit must set forth the identities of those persons, if known, for whom there is probable cause to believe they are committing the alleged offenses, even if it is not believed they will be intercepted over the target facility. This group of individuals is often referred to as the "Subjects." "Interceptees" may be listed separately; "interceptee" are those Subjects who are expected to be intercepted; D) (U//FOUO) Probable cause must be current and relevant to the use of the particular facilities for which interception is sought; E) (U//FOUO) The necessity for the Title III must be articulated. There must be a factual basis for concluding that alternative investigative procedures have been tried and failed or a demonstration why these procedures appear to be unlikely to succeed or would be too dangerous if tried ("boilerplate" statements in this respect are unacceptable); F) (U//FOUO) Interceptions must be minimized, as statutorily required; G) (U//FOUO) The facility or premises to be intercepted must be described fully, including a diagram, if possible, if microphone installation is contemplated (surreptitious entries may not be conducted for the purpose of preparing a diagram); H) (U//FOUO) Whether the request involves any of the seven (7) "sensitive circumstances"; and I) (U//FOUO) A statement describing all previous applications for Title III surveillance of the same persons (both subjects and interceptees), facilities or places named in the current affidavit. To comply with this requirement, a "search," e.g., an automated indices search of the FBI's ELSUR Records System (ERS) and the systems of other appropriate agencies, must be conducted prior to submitting the Title III affidavit to the DOI OEO (non-sensitive circumstances) or to the responsible FBIHQ operational unit (sensitive circumstances). The squad SSA is responsible for verifying that pre-Title III ELSUR checks have been completed before the affidavit is sent to the court. The ELSUR Operations Technician (EOT) and the ELSUR supervisor are responsible for confirming that ELSUR searches were properly conducted as set forth in the final affidavit submitted to the court. 18-171 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) At least 10 days prior to submitting the original Title III request to DOJ OEO, the field office must forward an electronic communication to FBIHQ setting forth by separate subheading: a synopsis of the investigation; the priority of the investigation within the office; the anticipated manpower and/or linguistic requirements and outside support, if any, that will be needed; a synopsis of the probable cause supporting the Title III application; the prosecutive opinion of the USAO; and description of the interceptees. If a field office is unable to submit the EC 10 days prior to submitting the request to DOJ OEO, the field office must advise the operational unit immediately and note the circumstances that prevent timely notification. (U//FOUO) Case agents must use the FD-669 (Pre Title III checklist) to guide them through completion of all compliance requirements for Title III. 18. 7 .2 .11 (U) DISPUTE RESOLUTIONFORTITLE IIIAPPLICATIONS (U//FOUO) When there are legal questions /concerns that cannot be resolved through discussions with reviewing officials at DOJ, the responsible FBIHQ operational division supervisors or executives must forward the application to OGC for its review, advice, and recommendation. 18.7.2.12 (U) NOTICEAND REPORTINGREQUIREMENTS-TITLE III (U//FOUO) The anticipated interception of conversations related to a "Sensitive Investigative Matter" as defined in the AGG-Dom, Part VII.N, requires notice to the appropriate FBIHQ Unit Chief and Section Chief, and DOJ Criminal Division. Note: A sensitive investigative matter (SIM) is not the same as a sensitive circumstance described above. (U//FOUO) Within 14 days of obtaining court authority for an original Title III initiation, the field office must submit a: (i) signed copy of the Title III order and supporting affidavit; (ii) completed CDC Checklist (FD-926); and (iii) FD-669 authorized by the SAC to : A) (U//FOUO) The appropriate FBIHQ operational unit; B) (U//FOUO) In applicable drug and money laundering investigations (described in the appropriate CID PG), a copy of the affidavit to Special Operations Division, Chantilly, Virginia; (U//FOUO) A copy of the DOJ memorandum directed to the AUSA entitled "Authorization for Interception Order Application" must be provided to the EOT. (U//FOUO) During an authorized intercept, the case agent, in coordination with the prosecuting attorney, must submit periodic investigative activity reports to the authorizing court for oversight of investigative progress (usually every 10 or 15 days) . Activity reports must be placed in the investigative file. (U//FOUO) Within 14 days of the conclusion of Title III ELS UR activity, the case agent must advise the operational FBIHQ investigative program by EC that the surveillance has concluded. Version Dated. October 15, 2011 18-172 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) Upon completion of Title Ill ELS UR activity , the Excel WT2 workbook must be submitted by EOU as required by Corporate Policy 0162N . For details on the completion and submission of the Excel WT2 workbook , see Corporate Policy 0162N . 18-173 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dated: Octot'~- 15, 2011 §18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Vers10n Dated· October 15, 2011 18-174 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.7.3 18.7.3.1 §18 (U) INVEST/GA TIVE METHOD: ELECTRONIC SURVEILLANCE - FISA TITLE Vil (ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION) (U) AND FISA SUMMARY (U//FOUO) ELSUR conducted pursuant to the Foreign Intelligence Surveillance Act (FISA) is a valuable investigative method. It is, also, a very intrusive means of acquiring information relevant to the effective execution of the FBI's national security and intelligence missions. To ensure that due consideration is given to the competing interests between national security and the effect on privacy and civil liberties, this section contains various administrative and management controls beyond those imposed by statute and DOJ guidelines. Unless otherwise noted, it is the responsibility of the case agent and his/her supervisor to ensure compliance with these instructions. FISA ELSUR is only authorized as an investigative method in the conduct of Full Investigations. FISA ELS UR requires: (i) administrative or judicial authorization prior to its use; (ii) contact with the field office ELSUR Technician to coordinate all necessary recordkeeping; and (iii) consultation with the Technical Advisor (TA) or a designated TTA to determine feasibility, applicability, and use of the appropriate equipment. (U//FOUO) Application: FISA ELSUR may be used in a Full (national security) Investigation and to collect foreign intelligence information. This method may not be used for: (i) an Assessment or Preliminary Investigation; or (ii) providing assistance to other agencies, unless there is already an FBI FISA related to the request for assistance. Attorney General approval must be obtained prior to using PISA-obtained or derived information in any proceeding whether foreign or domestic. When providing assistance to a foreign agency, information must be provided pursuant to the FBI's Foreign Dissemination Manual and the FBI's Standard Minimization Procedures or other applicable minimization procedures. (U) This section is divided below into FISA (18.7.3.2) and FISA Title VII (18.7.3.3). 18. 7.3.2 18.7.3.2.1 (U) FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) (U) LEGALAUTHORITY (U) 50 U.S.C. §§ 1801-1811 (FISA) and E.O. 12333 § 2.5. (U) FISA Amendments Act of2008 (P.L.No. 110-261). 18.7.3.2.2 (U) DEFINITION OF INVESTIGATIVE METHOD (U) FISA is the non-consensual electronic collection of information (usually communications) under circumstances in which the parties have a reasonable expectation of privacy and court orders or warrants are required. 18-175 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide § 18 18. 7.3.2.3 18.7.3.2.3.1 (U) STANDARDS FOR USE AND APPROVAL REQUIREMENTS FOR PISA (U) FISA REQUEST FORM (U//FOUO) FBIHQ and field office requests for FISC ELSUR orders must use the FISA Request Form. Field office requests for FISA orders are submitted and tracked through FISAMS. The FISA request forms, in a question and answer format, have been designed to ensure that all information needed for the preparation of a FISC application is provided to FBIHQ and to the DOJ. 18.7.3.2.3.2 (U) CERTIFICATE BYTHE DIRECTOR OF THE FBI (U) Each FISA application must be accompanied by a Certification by the Director of the FBI or one of nine other individuals authorized by Congress or the President to provide such certifications that: the information being sought is foreign intelligence information; that a significant purpose of the electronic surveillance is to obtain foreign intelligence information; that such information cannot reasonably be obtained by normal investigative techniques; that the information sought is "foreign intelligence information" as defined by FISA. The certification must include a statement explaining the certifier's basis for the certification. (U) Title 50 of the United States Code Section 1804 specifies the Assistant to the President for National Security Affairs; E.O. 12139 as amended by E.O. 13383 specifies the Director of the FBI, Deputy Director of the FBI, the Director of National Intelligence, the Principal Deputy Director of National Intelligence, the Director of the Central Intelligence Agency, the Secretary of State, the Deputy Secretary of State, the Secretary of Defense, and the Deputy Secretary of Defense as appropriate officials to make certifications required by FISA. The FBI Director has represented to Congress that the FBI Deputy Director will only certify FISA's when the FBI Director is not available to do so. 18.7.3.2.3.3 (U) EMERGENCYFISA AUTHORITY(50 U.S.C. § 1805[F]) (U) The Attorney General, on request from the Director of the FBI or his/her designee , may authorize an emergency FISA for electronic surveillance when it is reasonably determined that an emergency situation exists that precludes advance FISC review and approval and that a factual predication for the issuance of a FISA Order exists. A FISC judge must be infonned by DOJ at the time of the emergency authorization and an application must be submitted to that judge as soon as is practicable but not more than seven (7) days after the emergency authority has been approved by the Attorney General. If a court order is denied after an emergency surveillance has been opened, no information gathered as a result of the surveillance may be used as evidence or disclosed in any trial or other proceeding , and no information concerning any USPER acquired from such surveillance may be used or disclosed in any manner, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. Version Dated : October 15, 2011 18-176 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) For an emergency FISA for electronic surveillance, DOJ 01 can be reached during regular business hours at (202) 514-5600 or through the DOJ Command Center at (202) 514-5000 at any time. 18.7.3.2.4 {U) DURATION OFAPPROVAL FOR FISA (U//FOUO) Authorization for ELS UR surveillance exists for the period of time specified in the FISC's order, which will not exceed: 90 days for USPERs; 120 days for non-USPERs; and one year for a foreign power, as defined in 50 U.S.C. § 180l(a) (1)(2) or (3). For USPERs, renewals of FISA Orders may be requested and authorized for a period of 90 days based upon a continued showing of probable cause. For non-USPERs, renewals can be for a period not to exceed one year. All renewal requests must be submitted to DOJ NSD by the requesting field office at least 45 days prior to the expiration of the existing order. These requests must be submitted using the FISA Request Form process in FISAMS. 18.7.3.2.5 (U//FOUO) SPECIFICPROCEDURES FOR FJSA (U//FOUO) FISA related initiation and renewal procedures are contained within the FISA Initiation Form which can be found within FISAMS or on the Forms section of the NSLB library. 18.7.3.2.5.1 (U//FOUO) FISA VERIFICATION OF ACCURACY PROCEDURES (U//FOUO) The accuracy of information contained within FISA applications is of utmost importance; accordingly, the information must be reviewed in accordance with the FISA Accuracy Policy Implementation Guide. (U//FOUO) Only documented and verified information may be used to support FBI applications to the court. In addition to the certifications required through FISAMS, the following administrative procedures must be followed for every FISA application: A) (U//FOUO) Each investigative file for which an application is prepared for submission to the FISC must include a FISA Accuracy sub-file. This sub-file must be used for copies of all of the supporting documentation relied upon when making the certifications contained on the FISA Verification Form ("Woods Form"), which is available in the Forms section of the NSLB library at http: //home.fbinet.fbi /DO/OGC /Main%20Law %20Library /Forms/NSLB %20Library .a spx (U//FOUO) The PISA accuracy sub-file must include: 1) (U//FOUO) FBI database checks that were conducted to determine whether the target of the proposed FISA is also the subject of an FBI criminal investigation , past or present; 2) (U//FOUO) CHS file checks (DELTA, 134, 137, 270, and 307 files) that were conducted to determine whether the target has, or has had, a relationship with the FBI as a CHS; and 3) (U//FOUO) Copies of the most authoritative documents that exist for each fact asserted in the application. The most authoritative document may be a cable, EC, letterhead memorandum (LHM) , FISA intercept ("tech cut"), etc. The agent must use some judgment in ascertaining appropriate documentation, but, in general, the agent should attempt to get 18-177 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vn~wn Dated. Ort0ber 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 as close as possible to original documentation of a fact. For example, if the target's immigration status is summarized in an EC, the agent should strive to obtain a copy of the underlying immigration document to verify the fact(s) asserted rather than relying on the EC. Similarly, if the application states that a National Security Letter (NSL) was served on a certain date, there should be a copy of the NSL in the subfile instead of the EC that states an NSL was served. For more guidance on this issue, see FISA Accuracy PG at: http://home/forms/fd1 028/Policy%20and%20Guidance %20Library/0394PG.pdf B) (U//FOUO) Every FISA application is subject to review through two oversight mechanisms designed to ensure that FBI field offices are taking appropriate steps regarding the factual accuracy of statements to the FISC. First, CDCs in the field are required to conduct accuracy reviews of limited numbers of FISAs in accordance with procedures established by the General Counsel. Second, OI attorneys conduct accuracy reviews with CDC and NSLB participation on approximately an annual basis. A full description of each of these reviews can be found in the FISA Accuracy PG at: http://home/forms/f d 1028/Policy%20and%20Guidance%20Library /03 94PG .pdf 18.7.3.2.5.2 {U) USE OF FISA DERIVED INFORMATION IN OTHER PROCEEDINGS (U//FOUO) There are statutory (50 U.S.C. Sections 1806, 1825, and 1845) and Attorney General (AG) policy restrictions on the use of information derived from a PISA ELS UR, physical search, or PRITT. These restrictions apply to and must be followed by anyone "who may seek to use or disclose PISA information in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States .... " See DIOG Appendix E for the AG Memo , Revised Policy on the Use or Disclosure of PISA Information, dated 01-10-2008 . The guidance in the AG's Memo establishes notification/approval procedures which must be strictly followed. Though not contained in the AG Memo, FBI policy requires that use authority be obtained for foreign proceedings as well. Questions concerning the PISA use policy or requests for assistance in obtaining PISA use authority from the AG should be directed to NSLB's Classified Litigation Support Unit. (U//FOUO) The United States must, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or use that information or submit it into evidence, notify the "aggrieved person" [as defined in 50 U.S .C. Sections 180l(k), 1821(2), or 1841(2)], and the court or other authority in which the information is to be disclosed or used, that the United States intends to disclose or use such information . See 50 U.S.C. Sections 1806(c), 1825(d), and 1845(c). 18.7.3.2.5.3 {U//FOUO) FISA ELECTRONIC SURVEILLANCE ADMINISTRATIVE SeB- FILE (U//FOUO) Each investigative file for which an application is or has been prepared for submission to the FISC must include a sub-file labeled PISA Electronic Surveillanc e Administration Sub-File. This sub-file must contain copies of all applications to and orders issued by the FISC for the conduct of electronic surveillance in the investigat ion. The following data must be included in the PISA Electronic Surveillance Administ rati e Sub-file: Version Dated: October 15, 2011 18-178 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 A) (U//FOUO) The identities of the persons or entities that are the subject of the electronic surveillance; and B) (U//FOUO) The description of the facility that is the subject of the electronic surveillance. (U//FOUO) FISA 18. 7.3.2.5.4 REVIEW BOARD (U//FOUO) A FISA Review Board (hereinafter "Board") has been established that is responsible for reviewing, on a monthly basis, those FISAs (other than certain FISAs from the Counterintelligence Division) that have been maintained for more than one year. The Board's meeting schedule and requirements for renewal requests are contained and processed through FTSAMS . (U//FOUO) In determining whether to approve continued renewal of a FISA beyond one (1) year, the Board assesses the quality and quantity of foreign intelligence that has been generated by the FISA; the continued need for the foreign intelligence that is being generated by the coverage; the strategy and timing of any criminal prosecution that might be contemplated against the target; any backlog in translation of the results of the surveillance; and the relative risk to national security if the FISA is not renewed. (U//FOUO) FISAs that are not approved for renewal will be accompanied by an explanation of the reason for denial. FISAs with a dissenting opinion will be forwarded to the EAD NSB for an expeditious review. The Review Board's decision on renewals with dissenting opinions will be final, unless overruled by the EAD NSB. 18. 7.3.2.5.4.1 (U) APPEALING THE DECISION OF THE REVIEW BOARD (U//FOUO) Should the field office responsible for a FISA disagree with the decision of the Board, the field office responsible for the FISA may present this concern, by EC, to the Assistant Director (AD) responsible for the FISA. The AD will consider the merits of any additional information not previously submitted in writing to the Board and may choose to present a written appeal (EC) for further consideration to the EAD NSB. An EC documenting the decision of the EAD must be provided to the field office promptly upon the EAD' s NSB final decision. 18.7.3. 2.6 (U) NOTICE AND REPORTING REQUIREMENTS FOR FISA (U f/FOUO) All FISA related ELSUR notice and reporting requirements can be found in 50 L. S.C §§ 1806-1808 and are contained within FISAMS. 18.7.3 .2.7 (U) COMPLIANCE AND MONITORING FOR FISA ( U /FOUO) All compliance issues related to FISA ELSUR must be reported to the Unit Chief of OGC National Security Law Policy and Training Unit, or successor position (soon to be rena med the OGC National Security Law Compliance, Oversight, and Training Unit). 18-179 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver5ion D:ited O tobc r 1S, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 18.7.3.2.8 (U) SPECIAL CIRCUMSTANCES FOR FISA (U) Under 50 U.S.C. § 1802, the President , through the Attorney General , may authorize electronic surveillance under FISA without a court order for periods of up to one year, if the Attorney General certifies in writing under oath that the surveillance will be solely directed at acquiring communications that are transmitted by means that are exclusively between or among foreign powers and there is no substantial likelihood of the surveillance acquiring the contents of communications to which USPERs are parties . 18.7.3.2.9 (U) FISA OVERCOLLECTION (U//FOUO) In accordance with Foreign Intelligence Surveillance Court (FISC) Rule of Procedure 15, information acquired outside of the scope of the FISA authorization ("FISA overcollection") will no longer be sequestered with the FISC, absent extraordinary circumstances. Contact NSLB for further guidance regarding the handling of any FISA overcollection. 18. 7.3.2.10 (U) OTHER 18.7.3.2.10.1 APPLICABLE POLICIES (U) FISA A) (U//FOUO) CD Policy Guide B) (U//FOUO) CTD Policy Guide C) (U//FOUO) Investigat ive Law Unit Library D) (U//FOUO) Fore ign Intelligence Surveillance Act (PISA) Unit 18.7.3.3 18. 7.3.3.1 (U) FISA TITLE VII (ACQUISITION OF FOREIGN INTELLIGENCEINFORMATION) {U) SUMMARY (U) Titles I and III of the FISA (codified as 50 U.S.C. §§ 1801, et seq.) provide the standa: traditional methods of collection against agents of foreign powers (including USPER s anc non-USPERs) and foreign establishments inside the United States. Title VII of FISA , "Additional Procedures Regarding Certain Persons Outside the United States ," provide · means to target non-USPERs reasonably believed to be located outside the United State: 18.7.3.3.2 (U) LEGAL AUTHORITY A) (U) FISA Amendments Act of 2008 (122 Stat 2436) B) (U) AGG-Dom, Part V.A.13 18.7.3.3.3 (U) DEFINITION OF INVEST/GA TIVE METHOD (U) Title VII may be used for conducting FISAs on certain persons located outside rt e States. Ve 1·sion Dated: Or-ob;,r l S 20 11 18-180 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.7.3.3.4 (U //FOUO) §18 STANDARDS FOR USE AND APPROVAL REQUIREMENTS FOR INVESTIGATIVE METHOD (U//FOUO) See requirements under DIOG Sections 18.7.1, 18.7.2, and 18.7.3 and requirements specified above. 18.7.3.3.5 (U) DURATION OFAPPROVAL (U//FOUO) See requirements under DIOG Sections 18.7.1, 18.7.2, and 18.7.3 above. 18.7.3.3.6 (U//FOUO) SPECIFIC COLLECTION PROCEDURES FOR TITLE VJ/ (U) The relevant procedures (or collections) under Title VII are: 18.7.3.3.6.1 (U) SECTION 702-PROCEDURES (NON-USPERs) FOR TARGETING NON-U.S. PERSONS WHO ARE OUTSIDE THE UNITED STATES (U//FOUO) Under Section 702, the Government has the authority to target non-USPERs who are located outside the United States if the collection is effected with the assistance of an electronic communication service provider, as that term is defined in FISA. This section does not require a traditional FISA request. Rather, under this section, the Attorney General and the Director of National Intelligence may authorize, for periods of up to one year, the targeting of non-United States persons reasonably believed to be located outside the United States to acquire foreign intelligence information, provided they execute a Certification that is submitted to and approved by the FISC. The Certifications are accompanied by an affidavit signed by the FBI Director. In addition, the FBI is required to file "Targeting Procedures" that ensure that only non-U.S. persons (non-USPERs) reasonably believed to be located outside the United States will be targeted for collection and "to prevent the intentional acquisition of any communications as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." Additionally, the statute prohibits targeting any person reasonably believed to be located outside the United States for the purpose of obtaining the communications of a particular, known person reasonably believed to be in the United States. Finally, the FBI is also required to follow 702-specific minimization procedures. 18. 7.3.3.6.2 (U) SECTION 703-CERTAIN ACQUISITIONS INSIDE THE UNITED STATES TARGETING UNITED STATES PERSONS OUTSIDE THE UNITED STATES (U//FOUO) Under Section 703, the Government has the authority to target USPERs who are reasonably believed to be located outside the United States if the collection is effected with the assistance of a United States provider and if the collection occurs inside the United States. This section only authorizes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires a court order, e.g., non-consensual collection. FISA 703 is an alternative to traditional FISA electronic surveillance (Title I) or physical search (Title III) authority when the facts meet the 703 criteria. There are two notable differences between Section 703 and traditional FISA authorities. First, although the application must identify any electronic communication 18-181 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver:,ion Dated: Oc.tober 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 service provider necessary to effect the acquisition, the application is not required to identify the specific facilities, places, premises, or property at which the acquisition will be directed. Second, Section 703 allows for the targeting of a USPER who is "an officer or employee of a foreign power," even if the target is not knowingly engaging in clandestine intelligence gathering activities, sabotage, or international terrorism. To obtain authority to collect information under this section, the FBI must submit a FISA request and obtain a FISC order and secondary orders, as needed. The process to obtain that order is the same as the standard FISA process. Refer to the FISA Unit's website for further information. Section 703 also allows for emergency authorization. Unlike traditional FISA orders, however, surveillance authorized pursuant to this section must cease immediately if the target enters the United States. If the FBI wishes to continue surveillance of the USPER while he or she is in the United States, the FBI must obtain a separate court order under Title I (electronic surveillance) and/or Title III (physical search) of FISA in order to conduct electronic surveillance or a physical search of that USPER while the person is located in the United States. The use of any information collected using FISA 703 authority must comply with the applicable minimization procedures. 18.7.3.3.6.3 (U) SECTION 704 - OTHER ACQUISITIONS TARGETING UNITED STATES PERSONS OUTSIDE THE UNITED STATES (U//FOUO) Under Section 704, the Government has the authority to target USPERs who are reasonably believed to be located outside the United States if the collection occurs outside the United States (i.e., without the assistance of a United States' electronic communication service provider). The statute requires that the FISA court issue an order finding probable cause to believe that the USPER target is a foreign power, an agent of a foreign power, or an officer or employee of a foreign power and is reasonably believed to be located outside the United States "under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted in the United States for law enforcement purposes." To obtain authority to collect information under this section, the FBI must submit a FISA request and obtain a FISC order (the order will not include secondary orders). The process to obtain a FISA 704 order is similar to, but more streamlined than, that for obtaining a traditional FISA under the standard FISA process. There are two notable differences between Section 704 and traditional FISA authorities. First, the application i not required to identify the specific facilities, places, premises, or property at which the acquisition will be directed. Second, Section 704 allows for the targeting of "an officer or employee of a foreign power" even if the target is not knowingly engaging in clandest ine intelligence gathering activities, sabotage, or international terrorism. Refer to the FISA Unit's intranet website for further information. Section 704 also allows for emergency authorization. Unlike traditional FISA orders, however, surveillance authorized pursu anto this section must cease if the USPER enters the United States but may be re-started if the person is again reasonably believed to be outside the United States during the authorized period of surveillance. If there is a need to continue surveillance while the target is located inside the United States a separate court order must be obtained. The USc of any information collected using FISA 704 authority must comply with the applicab le minimization procedures. Vers10n Dated October l c;,2011 18-182 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §18 (U//FOUO) Generally, the FBI requires the assistance of other USIC agencies to implement surveillance authorized pursuant to Section 704. Specific procedures exist for requesting such assistance. These procedures are classified and can be found in FBI Corporate Policy 12 l N. 18.7.3.3.6.4 (U) SECTION 705-JOINT APPLICATIONS AND CONCURRENT AUTHORJZA TIONS (U//FOUO) Section 705(a) "joint applications" allow the FISC, upon request of the FBI, to approve a joint application targeting an USPER under both Sections 703 and 704 (authority to collect both when the person is inside and outside the United States). (U//FOUO) Section 705(b) provides that if an order has been obtained under Section 105 (electronic surveillance under Title I of FISA) or 304 (physical search under Title III of FISA), the Attorney General may authorize the targeting of the USP ER target while such person is reasonably believed to be located outside the United States. The Attorney General has this authority under E.O. 12333 § 2.5. In other words, when the FISA Court authorizes surveillance of an USP ER target, the Attorney General, under Section 705(b) and E.O 12333 § 2.5, can simultaneously authorize surveillance to continue if the target travels outside the United States during the authorized period of the surveillance. According to Section 705(b ), there is no need for a separate order pursuant to Section 703 or 704. During the FISA drafting process, an FBI employee should determine whether surveillance or physical search may occur for purpose of acquiring foreign intelligence while the person is reasonably believed to be outside the United States. If so, the FBI employee should consult with an OGC or DOJ-NSD attorney to ensure that appropriate language is added to the application. (U//FOUO) Often when surveilling a USPER overseas, the FBI requires the assistance of other USIC agencies. Specific procedures exist for requesting such assistance. These procedures are classified and can be found in FBI Corporate Policy 121N. 18.7.3.3.6.5 (U) FISA 0VERCOLLECTION (U//FOUO) In accordance with Foreign Intelligence Surveillance Court (FISC) Rule of Procedure 15, information acquired outside of the scope of the FISA authorization ("FISA overcollection") will no longer be sequestered with the FISC, absent extraordinary circumstances. Contact NSLB for further guidance regarding the handling of any FISA overcollection. 18-183 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ven;1on Dat('d: OLtober lS, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 19 (U) ARRESTPROCEDUREPOLICY 19 .1 (U) ARREST WARRANTS 19.1.1 (U) COMPLAINTS (U) A complaint is a written statement of the facts necessary to establish probable cause to bel ieve that an offense has been committed and that the defendant committed it. A complaint is pres ented under oath before a magistrate judge , who may issue an arrest warrant or a summons for the defendant if he/she finds the complaint establishes probable cause to believe the defendant committed the charged offense. 19.1.2 (U) ARREST WARRANTS (U) Any justice, judge or magistrate judge of the United States has the authority to issue arrest warrants for any offense against the United States. In addition , if a federal judge is not available any justice of a state supreme court , mayor of a city, state or local judge, justice of the peace , or other magistrate of any state where the offender may be found can issue such warrants as long as he/she is neutral, detached and capable of deciding probable cause. Copies of warrants issued under this authority are returned to the court of the United States that has jurisdiction over the offense . 19.1.3 (U) ]URISDICTION (U) Federal rules do not limit the application for an arrest warrant to any specified district. Usually , an application for a warrant will be made in the district where the offense was committed, but it may also be issued by a magistrate judge in the district where the offender is located. 19.1.4 (U) PERSON TO BEARRESTED (U) An arrest warrant must contain the name of the defendant or, if his/her name is unknown, any name or description by which the defendant can be identified with reasonable certainty. There is no requirement to determine the defendant ' s true name before a warrant can be issued. It is sufficient to develop facts which provide a reasonable belief that a particular individual is the offender. A warrant can be based on facts that provide a distinguishing physical description or describe the particular circumstances in which the defendant can be found . 19-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide § 19 19.2 19.2.1 (U) ARREST WITH WARRANT (U) POLICY (U) Whenever possible, an arrest warrant must be obtained prior to an arrest. SSAs may authorize Agents 19 to execute arrest warrants and, in extraordinary circumstances, FBIHQ should be notified in advance of the arrest. For example, SSA's should notify FBIHQ when the arrest may have a significant impact on an investigation in another field office or when the arrest is likely to cause widespread publicity due to the identity or status of the arrestee or the nature of the crime. (U) Upon the execution of an arrest warrant, the apprehending field office/division must promptly enter a "locate" within NCIC. The 00 of the warrant must enter a "clear" within NCIC within 24 hours of the "locate." See the NCIC Field Division Guide, 0145PG for detailed NCIC policy. 19.2.2 (U) PROMPT EXECUTION (U) While there is no time limit on the execution of arrest warrants (unlike search warrants), as a general rule Agents should make the arrest without prolonged delay after obtaining the warrant. 19.2.3 (U) ARREST PLANS (U) The SAC is responsible for ensuring that arrests are carefully and thoroughly planned. Proper planning and preparation for arrest situations can greatly enhance the safety and effectiveness of Agents and officers during these high-risk situations. Whenever possible , written arrest plans must be prepared prior to conducting law enforcement activities that may result in the arrest of a potentially dangerous subject. Arrest plans must address five topics: Situation, Mission , Execution, Administration and Equipment, and Control and Communications. The FD888, FBI Arrest Plan Form, (http://hom e.fbinet.fbi/fon11s/fd l 028/ SentinelFormsTe st/FD8 88/default.asp x) must be utilized whenever possible. When briefing the arrest plan, the briefing Agent should stress to the participants of the operation that any arrest has the potential to become dangerous. Exigent circumstances may necessitate an oral briefing in lieu of a written plan, but the oral briefings must address the five topics required to be included in written plans. The planning and execution of arrests, raids, and searches should be assigned to experienced Agents. All arrest plans must be approved by ASACs or their designees. (U) The SSA may consider utilizing, and/or alerting local authorities to the planned arrest, if appropriate under the circumstances. Although the time of notification is left to the discretion of the SSA, he/she must consider the jurisdiction of local law enforcement, its responsibility to its community and its need to be aware of law enforcement actions in its jurisdiction . (U) The term "Agent" in the context of this section includes FBI Special Agents and other federal, state, tribal, or local law enforcement officers who have been deputized under either Title 18 or 21 of the United States Code and are working on behalf of or at the direction of the FBI, e.g. task force officer, JTTF, etc. 19 Ve ·s on D<1ted Oc oher 15 2011 19-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 19.2.4 §19 (U) JOINT ARRESTS (U) An SSA may authorize a joint arrest with state and local authorities, United States Marshal's Service (USMS), or other federal law enforcement agencies. In circumstances of joint arrests, the SAC remains responsible to ensure that there is a well-considered arrest plan. 19.2.5 (U) POSSESSIONAND DISPLAY OF WARRANT (U) If time permits, the arresting Agent should have the arrest warrant in his/her possession and show it to the defendant at the time of arrest. If the Agent does not have the warrant with him/her at the time of arrest, the Agent must inform the defendant of the offense( s) charged and that a warra nt has been issued. The Agent must, at the defendant's request, obtain the warrant and show it to the defendant as soon as practicable. 19 .3 19.3.1 (U) ARREST WITHOUT WARRANT (U) FEDERALCRIMES (U) Whenever possible, SAC and USAO authority must be obtained before making a warrantless arrest. Agents are authorized to make warrantless arrests for any federal crime (felony or misdemeanor) committed in their presence. Agents also have authority to make warrantless felony arrests for a crime not committed in the presence of the Agent if there is probable cause to believe the person to be arrested committed a federal felony. A warrantless arrest must only be made when sound judgment indicates obtaining a warrant would unduly burden the investigation or substantially increase the potential for danger or escape. (See Non-Federal Crimes below) 19.3.2 (U) NOT/FICATION TO U.S.ATTORNEY (U) When a warrantless arrest has been made, the United States Attorney's Office (USAO) must be contacted immediately for authorization to prosecute. 19.3.3 {U) NON-FEDERAL CRIMES (U) There is no federal statutory authority for Agents to intervene in non-federal (state) crimes. FBI policy permits certain types of non-federal arrests in exigent circumstances. (U) As a general rule, an Agent should only make an arrest for a state crime if a serious offense (felony or violent misdemeanor) has been committed in his or her presence and immediate action by the Agent is necessary to prevent escape, serious bodily injury, or destruction of property. (U) Agents are also authorized to arrest a person who is the subject of an FBI Predicated Investigation when a state or local arrest warrant for that person is outstanding, and the person is encountered during the investigation and would likely escape if not arrested. Similarly, an Agent working with state or local law enforcement officers who request assistance to apprehend a nonfederal fugitive who has been encountered during the course of a federal investigation is authorized to provide the requested assistance when intervention is otherwise permitted for a state crime as described in the preceding paragraph. 19-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 (U) In some states, there is legislative authority for an Agent to intervene in certain types of state crimes as a peace officer rather than as a private citizen. Deputization as a state peace officer allows a federal Agent to make arrests for state offenses with the authority and immunities of a law enforcement officer of the state or one of its subdivisions. Of greater significance is whether intervention by an Agent in a particular nonfederal crime falls within the scope of employment. Agents who intervene in serious nonfederal crimes committed in their presence or who arrest a state fugitive under the circumstances previously described will normally be considered to be acting within the scope of their employment. While the determination to provide legal representation depends on the facts and circumstances of each circumstance, the DOJ, as a general rule, will provide legal representation to Agents who act in accordance with this policy . (U) It is important to note that the DOJ has indicated that efforts to enforce minor infractions of the law, such as shoplifting or traffic violations, are not generally considered to be within the scope of employment. Civil actions against federal personnel concerning acts which fall outside the scope of employment will not be removed to federal courts, and employees in such circumstances will not be eligible for legal representation provided for by the DOJ. An Agent's status with respect to civil liability in such circumstances will depend on a particular state's law, which may require an employee to defend himself /herself as an ordinary citizen. (U) See LHBSA Section 9 for a discussion of potential civil liability when making nonfederal arrests. 19.3 .4 (U) ADH ERENCE TO FBI PO LICY (U) If any official in the USAO instructs an Agent to arrest or detain a subject in any manner contrary to FBI rules and regulations , the Agent must not comply with such instructions and must immediately inform the SSA. (See the special rules in Section D.13 below for the arrest of juveniles.) 19.4 (U) PROMPT APPEARANCEBEFORE MAGISTRATE (U) When a federal arrest is made , the arrestee must be taken before the nearest available federal magistrate judge without unnecessary delay. If a federal magistrate judge is not available , the arrestee may be brought before a state or local judicial officer authorized by 18 U.S.C. § 3041 after consultation with the USAO. (U) Special Considerations for UF AP Arrests: If the arrestee was arrested on a warrant charging only a violation of UF AP, the arrestee can be transferred without unnecessary delay to the custody of the appropriate state or local authorities in the district of arrest. The USAO in the originating district will move promptly to dismiss the UFAP warrant. It is not necessary to wait until the UF AP warrant has been dismissed to release the subject to state or local authorities , but it is important for the Agent to ensure that the USAO dismisses the UFAP warrant promptly after the arrest. (U) If an Agent makes a warrantless arrest, a complaint must be filed setting forth the probable cause. The complaint is generally submitted when the arrestee is brought before the magistrate. A personal, telephonic, or electronic presentation to the magistrate of the facts setting forth the Version Dated. October 15, 2011 19-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 probable cause must occur within 48 hours of a warrantless arrest if the arrestee is detained and an initial appearance cannot be held within that 48-hour period. 19.4.1 (U) DEFINITIONOF UNNECESSARYDELAY (U) Rule 5 of the Federal Rules of Criminal Procedure requires the arresting agent to bring the accused before a federal magistrate judge without unnecessary delay. What constitutes "unnecessary delay" is determined in light of all the facts and circumstances. Confessions obtained from defendants during periods of unnecessary delay prior to initial appearance are generally inadmissible at trial. A voluntary confession that occurs within six (6) hours of arrest is admissible if the delay of the initial appearance would be the sole reason for suppression. The six hour period begins when the accused is arrested or taken into custody by federal law enforcement authorities on a federal charge and runs continuously. The six-hour safe harbor can be extended to include delays found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available magistrate judge. Delay for the purpose of conducting interrogation will not be excused. Delays for many other reasons are justified and not grounds for suppression, particularly when there is no indication that the purpose of the delay was to extract a confession. For example, courts have found delays beyond six hours to be justified when attributable to the defendant's need for medical treatment, his intoxication, the officers' need to remain at the scene, the unavailability of a magistrate , and booking or other legitimate police procedures unrelated to interrogation. (U) To avoid the risk that a court will determine that delay beyond the safe-harbor period was "unnecessary" and suppress a confession elicited more than six (6) hours after arrest, Agents who want to continue or resume an interrogation after six (6) hours must seek a waiver of the right to prompt presentment from the accused. To continue an interrogation after six hours have elapsed, Agents must advise the suspect of his Rule 5 rights, and seek an affirmative waiver of those rights from him. The warning and waiver must be substantially in accord with this approved waiver language: (U) "You have a right to be taken without unnecessary delay to court, where a judge will advise y ou of the charges against y ou and provide y ou with a copy of any affidavit the go vernment has fil ed in support of these charg es. The judg e will also advise y ou of the rights I advised y ou of pr eviously, namely, that y ou have a right to an attorn ey and to have an attorn ey appoint ed for yo u; that y ou have a right to remain silent and that any stat ement y ou make may be used against y ou. The jud ge will also tell y ou that y ou have a right to a pr elimina ry hearing, at which the governm ent will have to establish that the charg es in the complaint are supported by probabl e caus e. The judge will also tell you about the factors that will determine whether y ou can be released from custody prior to trial. Do y ou understand this right and are y ou willing to waive it and continu e to talk to us.? " (U) It is prudent to obtain a waiver of the right to prompt presentment in any circumstance when interrogation extends beyond the six-hour safe-harbor period . 19.4.2 (U) EFFECTOF UNNECESSARYDELAY (U) Incriminating statements obtained during any period of unnecessary delay after arrest and prior to the initial appearance before a magistrate are subject to suppression . 19-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 19.4.3 (U) NECESSARYDELAY (U) If the delay in bringing an arrested person before the magistrate judge is greater than six hours and a confession is obtained after six hours, the government has the burden of proving the delay was reasonable. Factors which could contribute to a reasonable delay are the means of transportation, the distance to the nearest available magistrate judge and the time and day of the week of the arrest. 19.4.4 (U) INITIALPROCESSING (U) Following an arrest, the defendant should be brought to the nearest FBI office for fingerprinting, photographing, and an interview, where appropriate. Other law enforcement offices may be used for this purpose if FBI facilities are not reasonably available. This process generally should not exceed six hours, measured from the time of arrest to the time of arrival before the magistrate judge. 19.4.5 (U) COLLECTIONOFDNA AFTERARREST OR DETENTION (U) The Attorney General has directed the FBI to collect DNA samples from all arrestees, other than juveniles, and all non-U.S. persons (non-USPER) lawfully detained. A DNA sample should ordinarily be obtained during initial processing. FBI DNA collection kits should be used to collect a saliva sample from inside the person's mouth. (U) There is no requirement to obtain a DNA sample from an individual who is arrested on an UF AP warrant when that individual will be turned over to the appropriate state/local agency with the expectation that the UF AP charge will be dismissed. A DNA sample should not be obtained from an individual arrested on a UF AP warrant when there is no expectation of federal prosecution. For example, when it is anticipated that the UF AP charge will be dismissed and the individual turned over to the appropriate state/local agency , no DNA sample should be obtained . (U) A DNA sample may not be taken from a juvenile arrestee. A DNA sample may only be taken from a juvenile after he/she has been convicted of certain drug or violent offenses. (U) Federal law requires covered individuals to provide a DNA sample as a condition of pre-tri al release and imposes criminal liability for failing to cooperate in the collection of the sample. (U) The law also authorizes "such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample." Ifresistance is encountered, agents must seek to elicit the cooperation of the individual to collect the sample. If the individual continues to resist, agents must advise the USAO or the judge and seek a judicial order requiring the individual to cooperate. If the individual still continues to resist after the court order, agents may use reasonable force to overcome resistance and safely obtain the DNA sample. (U) For additional information on the process of collecting DNA samples from arrestees, see EC dated, 11/20/2009 from Laboratory to All Field Offices (319T-HQ-A1487667-LAB). Version Dated. October 15, 2011 19-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 19.5 19.5.1 §19 (U) USE OF FORCE (U) IDENTIFICATION (U) An arresting Agent should identify himself/herself before effecting the arrest, in a clear, audible voice, as a Special Agent of the FBI and state his/her intention to arrest the subject. 19.5.2 (U) PHYSICALFORCE (U) Agents are permitted to use the amount of physical force reasonable and necessary to take custody and overcome all resistance of the arrestee, and to ensure the safety of the arresting Agents, the arrestee and others in the vicinity of the arrest. (U) See FBI Deadly Force Policy - DIOG Appendix F. 19.5.3 (U) RESTRAININGDEVICES (U) Temporary restraining devices, such as handcuffs, shackles and/or belts may be used to secure an arrestee. Use of such devices is lawful and proper, and Agents are expected to employ reasonable judgment under the circumstances in the use of these devices and to resolve any doubt in favor of their use. 19.5.4 (U) PREGNANTARRESTEES (U) Within the standard operational procedures designed to ensure the successful completion of an operation and its immediate objectives, and while also guarding the safety of all involved, reasonable precautions and techniques should be employed when dealing with an arrestee reasonably believed to be pregnant to avoid harm to the fetus. This caution includes actions involving confrontation, apprehension, employing restraints, transporting and confining the individual, and respond promptly to needed or requested medical care. In particular, reasonable care or precautions should be considered and used, if appropriate under the circumstances, when employing physical restraints that directly constrict the area of the fetus. 19.6 19.6.1 (U) MANNER OF ENTRY (U) KNOCK AND ANNOUNCE (U) Agents are required by law to "knock and announce" their identity, authority and purpose, and demand to enter before entry is made to execute a arrest warrant. This is part of the "reasonableness" requirement of the Fourth Amendment. The announcement can be given by one Agent and need not be lengthy or elaborate but must convey to the person behind the door what is occurring. A loud announcement is essential and electronic devices designed to amplify the voice should be used where communication is anticipated to be difficult. The "knock and announce" requirement need not be complied with when the Agent executing the warrant has a reasonable suspicion of one or more of the following: A) (U) to "knock and announce" would cause the Agent and/or another to be placed in imminent peril of bodily harm; 19-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Verswn Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 B) (U) to "knock and announce" would be a useless or ~tile gesture as the persons within the premises already know of the Agent's identity, authonty, and purpose; C\ ~\ \.()"\mm: .\s:.'a.\\.<:\ 'a.\\.\\.GU.\\.c:.e!' v.iGu.\dc:.aw&e the evtdenc:.esoug,ht under the warrant to be destroyed m: Iemaved·, m: \)')~\.I::) 19.6.2 "Thl::)c;:,,......_ 'o.Y.:\~'o.Y.:\Y.:\W~~-c;:,,~' ~I::)~~ 'y~~\_\ %\.~~',..c;:,,'o.'y~ 1::)\.. %\.~~~'\',..\;:)~ %\.~ ',..~~'-f__',.. \I;:)'c..'\\.~i\.. (U) SUSPECT'SPREMISES (U) In order to lawfully enter a suspect's premises to effect an arrest, Agents must have either: i consent to enter, (ii) an emergency ("hot pursuit") justifying a warrantless entry, or (iii) an arrest warrant and probable cause to believe the suspect is in the premises. In determining whether a location is the suspect's premises, an apartment, hotel, motel or boardinghouse room becomes the principal residence of the person renting or leasing such premises. If the suspect is not named on the lease or rental agreement, the premises may still be considered the suspect's premises if the suspect occupies the premises jointly with another. 19.6.3 (U) THIRD PARTY PREMISES (U) In order to lawfully enter a third party's premises to arrest a suspect, Agents must have either: (i) consent to enter, (ii) an emergency ("hot pursuit") justifying a warrantless entry, or (iii) a search warrant for the third party premises describing the person to be arrested. For these purposes, a "third party premises" is any private premise which is not the principal residence of the person to be arrested. For example, a search warrant would be necessary if the arrestee is an overnight guest, casual visitor, or temporary caller at the premises of the third party. In order to make an entry to arrest, whether premised on an arrest warrant, search warrant, or exigent circumstances, the Agent must have probable cause to believe the suspect to be arrested is within the premises being entered. 19.6.4 (U) EXIGENTCIRCUMSTANCES (U) If an Agent has a reasonable belief that the subject will flee before a warrant can be obtained , or there is a substantial likelihood that the subject will dispose of evidence before a warrant can be obtained or there is increased danger to Agents or others if entry is delayed to obtain a warrant, exigent circumstances exist which may justify entry into premises to make a warrantless arrest or entry into third party premises without a search warrant to make an arrest. 19. 7 (U) SEARCHINCIDENTTO ARREST (U) The authority to search incident to an arrest is an exception to the warrant requirement. Under this exception, an Agent may conduct a full and complete search of the person of the arrestee and the area within the arrestee's "immediate control." Immediate control means "the area from within which he might gain possession of a weapon or destructible evidence." Once an arrestee has been secured and can no longer reach into the area to be searched, there is no longer justification for a warrantless search. The purpose for the exception is to protect the arresting Agent, prevent escape, and preserve any evidence in possession of the arrestee. The right to search flows from the fact of arrest, not the nature of the crime for which the arrest has been made. Version Dated: October 15, 2011 19-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 19.7.1 (U) PREREQUISITE: §19 LAWFUL ARREST (U) For a search incident to arrest to be lawful, the arrest itself must be lawful, i.e. probable cause must exist. Agents can maximize the likelihood that an arrest and search will survive a motion to suppress by obtaining an arrest warrant before effecting the arrest. As discussed below, entry into a subject's premises to arrest may also affect the validity of a search incident to arrest. (U) Entry into Suspect's Premises: Any entry into premises in order to affect an arrest must be lawful. If entering the defendant's premises to effect the arrest, Agents must have either (i) consent to enter, (ii) an emergency ("hot pursuit"), or (iii) an arrest warrant and probable cause to believe that the defendant is inside the premises. 19. 7.2 19.7.2.1 (U) SCOPE AND TIMING REQUIREMENT (U) SCOPE OF SEARCH (U) The Agent is entitled to search the person of the arrestee and the area within the arrestee's immediate control at the time of arrest for weapons, to prevent concealment or destruction of evidence, and to prevent concealment of any means of escape. The search may include any portable personal property in the arrestee's actual possession, such as clothing, purses, briefcases, grocery bags, etc. Items of personal property that are accessible to the arrestee, such as an unlocked desk drawer or unlocked suitcase, may be searched. Absent an emergency, inaccessible or locked items of personal property may not be searched. If there is probable cause to believe such items contain evidence, they may be seized, but the Agent must obtain a search warrant prior to opening the item. Once an arrestee has been secured and can no longer reach into the area to be searched, there is no longer justification for a warrantless search 19.7.2.1.1 (U) VEHICLES (U) The interior passenger compartment of a vehicle may be searched incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of search or if it is reasonable to believe the vehicle contains evidence of the offense for which the person was arrested. Absent one of these factors, a warrantless search of an arrestee's vehicle is unlawful. For example, a search of the vehicle incident to an arrest would not be permitted after the occupant has been removed, handcuffed, and placed in a nearby Bureau vehicle if the arrest was based on an outstanding arrest warrant for failure to appear. If a search of a vehicle incident to arrest can be done under these factors, the permissible scope can include unlocked or otherwise accessible containers, such as glove compartments, luggage, bags, clothing, etc. 19.7.2.1.2 (U) PROTECTIVE SWEEP (U) Agents may conduct a protective sweep of the areas immediately adjacent to the site of the arrest for the purpose of locating persons that may pose a threat to the safety of the Agents or others. Additionally, a protective sweep of other areas beyond those immediately adjacent to the site of the arrest may be conducted if the Agents have a reasonable suspicion, based on specific and articulable facts, that an individual who poses a danger to those present is in the 19-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY \f'VilOI' Octed: Octohu L) 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 area to be swept. Reasonable suspicion must be based on facts known to the Agents , such as noises in an attic or the at-large status of a dangerous associate. A protective sweep must be limited to a brief inspection of those areas within the premises in which a person could hide. If an Agent observes evidence in plain view while conducting a protective sweep , the evidence may be seized under the plain view doctrine. 19.7.2.2 (U) TIMING (U) A search incident to arrest must be made contemporaneous to the time and place of arrest and before the arrestee is removed from the area. A further more thorough search of the arrestee at the FBI office or some other place to which the arrestee is transported is also permitted as a search incident to arrest. Additionally , Agents may make protective sweeps as described above at the time of arrest. (U) INVENTORYOFPERSONALPROPERTY 19.7.3 (U) Items of personal property removed from a person who has been arrested and is to be incarcerated should be carefully inventoried and promptly, thoroughly searched by Agents prior to being stored for safekeeping. The inventory must include the contents of containers such as purses, shoulder bags, suitcases, etc. (U) If Agents have probable cause to believe evidence or contraband is in a locked container , a search warrant must be obtained absent emergency circumstances. This is the case because such a search is investigatory in nature. It also falls outside what is permitted as a search incident to arrest because the contents of a locked container are not immediately accessible to the arrestee. (U) Agents do not need a warrant to conduct an inventory search of a lawfully seized container removed from an arrestee's person. Agents may not, however, conduct an inventory search solely for investigative purposes. The inventory search must strictly adhere to standardized criteria and procedures for collection of property . 19.8 (U) MEDICALATTENTION FORARRESTEES (U) If a person in FBI custody complains of sickness or ill health or if it is reasonably appar ent to Agents that such a condition exists, arrangements should be made to afford such persons medi cal attention without delay. Agents must also be mindful of the health and well-being of any pregnant subject and make arrangements for medical attention when asked or when it is reasonably apparent that the subject or fetus needs medical attention. lf the time required to obtain medical care may result in the passing of more than six hours between arrest and presentment, Agents must document the basis for and the receipt of any medical attention given to the arrestee. 19.9 (U) ARREST OF FOREIGNNATIONALS 19. 9.1 (U) REQUIREMENTSPERTAININGTO FOREIGNNATIONALS A) (U) When a foreign national is arrested or detained, the arresting agent must advise him/her of the right to have his/her consular officials notified. Version Dated: October 15, 201 l 19-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 B) (U) In some situations , the nearest consular officials must be notified of the arrest or detention of a foreign national, regardless of the national's wishes. C) (U) Consular officials are entitled to access to their nationals in detention and are entitled to provide consular assistance. (U) STEPS TO FOLLOW 19.9.2 WHEN A FOREIGN NATIONAL IS ARRESTED OR DETAINED (U) The arresting agent must determine the foreign national's country of citizenship . In the absence of other information, the arresting agent must assume that the country of citizenship is the country on whose passport or other travel documents the foreign national travels. (U) If the foreign national's country is not on the mandatory notification list below: A) (U) The arresting agent must promptly offer to notify the foreign national's consular officials of the arrest/detention . For a suggested statement to the foreign national , see Statement 1 below. B) (U) If the foreign national asks that consular notification be given , the arresting Agent must promptly notify the nearest appropriate consular official of the foreign national's arrest. (U) If the foreign national's country is on the list of mandatory notification countries: A) (U) The arresting agent must promptly notify the nearest appropriate consular official of the arrest/detention . B) (U) The arresting agent must tell the foreign national that this notification will be made . A suggested statement to the foreign national is found at Statement 2 below . (U) The arresting agent must keep a written record (EC or FD-302) in the investigative file that he/she provided appropriate notification to the arrestee and of the actions taken . Mandatory Notification Countries and Jurisdictions Algeria Guyana Saint Lucia Antigua and Barbuda Hong Kong zo Saint Vincent and the Grenadines Armenia Hungary Seychelles Azerbaijan Jamaica Sierra Leone (U) Hong Kong reverted to Chinese sovereignty on July 1, 1997, and is now officially referred to as the Hong Kong Special Administrative Region. Under paragraph 3(f) (2) of the March 25, 1997, U.S.-China Agreement on the Maintenance of the U.S. Consulate General in the Hong Kong Special Administrative Region, U.S. officials are required to notify Chinese officials of the arrest or detention of persons bearing Hong Kong passports in the same manner as is required for persons bearing Chinese passports-- i.e., immediately and, in any event, within four days of the arrest or detention . 20 19-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October l S, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 Mandatory Notification Countries and Jurisdictions Bahamas Kazakhstan Singapore Barbados Kiribati Slovakia Belarus Kuwait Tajikistan Belize Kyrgyzstan Tanzania Brunei Malaysia Tonga Bulgaria Malta Trinidad and Tobago China 21 Mauritius Tunisia Costa Rica Moldova Turkmenistan Cyprus Mongolia Tuvalu Czech Republic Nigeria Ukraine Dominica Philippines United Kingdom 22 Fiji Poland (non-permanent only) Gambia Romania Uzbekistan Georgia Russia Zambia Ghana Saint Kitts and Nevis Zimbabwe residents U.S.S.R. Grenada 21 (U) Notification is not mandatory in the case of persons who carry "Republic of China" passports issued by Taiwan. Such persons must be informed without delay, that the nearest office of the Taipei Economic and Cultural Representative Office ("TECRO"), the unofficial entity representing Taiwan's interests in the United States, can be notified at their request. 22 (U) Mandatory notification is required for nationals of the British dependencies Anguilla, British Virgin Islands, Bermuda, Montserrat, and the Turks and Caicos Islands . Their nationals carry United Kingdom passports . Verswn D.Jted October 15, :.'O11 19-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 19.9.3 §19 (U) SUGGESTEDSTATEMENTSTOARRESTED OR DETAINEDFOREIGN NATIONALS 19.9.3.1 (U) STATEMENT1: WHEN CONSULARNOTIFICATIONIS AT THE FOREIGNNATIONAL'S OPTION (U) You are entitled to have us notify your country's consular representatives here in the United States that you have been arrested or detained. A consular official from your country may be able to help you obtain legal counsel and may contact your family and visit you in detention, among other things. If you want us to notify your country's consular officials, you can request notification now or at any time in the future. After your consular officials are notified, they may call or visit you. Do you want us to notify your country's consular officials? 19.9.3.2 (U) STATEMENT2: WHEN CONSULARNOTIFICATIONIS MANDATORY (U) Because of your nationality, we are required to notify your country's consular representatives here in the United States that you have been arrested or detained. After your consular officials are notified, they may call or visit you. You are not required to accept their assistance, but they may be able to help you obtain legal counsel and may contact your family and visit you in detention, among other things. We will notify your country's consular officials as soon as possible. 19.9.4 (U) DIPLOMATICIMMUNITY (U) Diplomatic representatives of foreign governments in the United States may not be arrested. Agents may not enter the office or dwelling of a diplomat or a person with diplomatic immunity for the purpose of making an arrest, search, or seizure. 19.9.4.1 (U) TERRITORIALIMMUNITY (U) All embassies, legations, and consulates have territorial immunity. Consequently, no Agent may attempt to enter any embassy, legation, or consulate for the purpose of making an arrest, search or seizure. This territorial immunity extends to both the offices and residences of ambassadors and ministers, but only to the office of a consul. A consul's residence does not enjoy territorial immunity. 19.9.4.2 (U) PERSONALIMMUNITY (U) Ambassadors and ministers, members of their staffs and domestic servants, and the immediate family members of a diplomatic officer have personal immunity, as do the immediate family members of the administrative and technical staff of a diplomatic mission. Consequently, no Agent should attempt to arrest or detain any such person. The personal immunity applies to the staffs, domestic servants and immediate family members, regardless of citizenship. Ordinarily, consuls do not have personal immunity from arrest on misdemeanor charges. If the arrest of a consul is contemplated, immediately notify FBIHQ by telephone or electronic communication before any action is taken so that an appropriate check 19-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version :::Jated: October 1 '3,20 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 can be made with the Department of State to determine whether the consul involved has any special immunity. 19.10 (U) ARREST OF NEWS MEDIA MEMBERS (U) Attorney General approval must be obtained prior to seeking an arrest warrant for or arresting a member of the news media who is suspected of committing any federal offense in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of official news media duties. (U) Requests for the approval must be submitted to the AD of the operational FBIHQ division that is responsible for the investigative classification and the AD of the Office or Public Affairs (OPA) by an EC. The requesting EC must be reviewed by the CDC and approved by the SAC after coordination with the local USAO. The EC must set forth the facts believed to establish probable cause and the investigative justification for the arrest, consistent with the DOJ guidelines set forth in 28 C.F.R. § 50.10. (U) In emergency circumstances, an Agent may arrest a member of the news media without prior AG approval, if authorized by the SAC and the USAO . In such situations, the SAC must immediately notify the AD of the FBIHQ operational division, the AD of the OP A, and the General Counsel of the arrest, the emergency circumstances that justified proceeding without prior authorization and all of the information that would have been provided if prior authorization had been sought. The AD of the operational division must promptly notify the appropriate officials at DOJ as established in 28 C.F.R § 50.10. After these oral notifications have been made , the field office must provide written documentation to the FBIHQ operational AD as soon as practicable, but not more than 24 hours after the arrest. FBIHQ must provide appropriate written documentation to the DOJ approval authorities to whom oral notice was given . 19.11 (U) ARREST OF ARMED FORCESPERSONNEL (U) The Uniform Code of Military Justice authorizes any commanding officer exercising general court-martial jurisdiction to surrender military personnel under the officer's command to civil authority when the person has been charged with a civil offense. A request for surrender must be accompanied by: A) (U) A copy of the indictment, presentment, information , or warrant; B) (U) Sufficient information to identify the person sought as the person who allegedly committed the offense; and C) (U) A statement of the maximum sentence which may be imposed upon conviction. (U) Receipts for persons surrendered for civil prosecution should be signed by an official in the USAO, not by an FBI employee. Version Dated: October 15, 2011 19-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 19.12 (U) ARREST OF JUVENILES 19.12.1 (U) DEFINITION (U) A violation of 18 U.S.C. § 922(x)(2) or violation a federal law which would have been a crime, if committed by an adult, by a person who has not attained his/her 18th birthday is an act of juvenile delinquency . For the purpose of juvenile delinquency proceedings, a juvenile is a person who committed a crime before his/her l gthbirthday who has not attained his/her 21st birthday at the time charges are commenced. 19.12.2 (U) ARREST PROCEDURES (U) Prearrest procedures applicable to adults (discussion with USAO, filing of complaint, issuance of warrant) also govern arrests of juveniles. After arrest, however, the Federal Juvenile Delinquency Act requires strict compliance with the following procedures: A) (U) Advice of Rights - The arresting Agent must immediately advise the arrested juvenile of his/her "legal rights" in language comprehensible to the juvenile. The rights found on the standard Form FD-395 meet this requirement. The arresting Agent may obtain a signature waiving his/her rights only if the Chief Division Counsel (CDC) or the USAO, based on the Jaw of the circuit , has approved interrogation of the juvenile. B) (U) Notification to U.S. Attorney's Office and Juvenile's Parents - The arresting Agent must immediately notify the USAO and the juvenile's parents, guardian, or custodian, that the juvenile has been arrested. The juvenile's parents, guardian, or custodian must also be notified of the juvenile's rights (use the FD-395 for this purpose) and the nature of the alleged offense for which the juvenile was arrested. C) (U) Initial Appearance before Magistrate Judge - Subsequent to his/her arrest, the juvenile must be taken to a magistrate judge forthwith. D) (U) Record of Notification and Appearance - Because proof of timely notification to the juvenile's parents and prompt appearance before the magistrate judge is essential, Agents must promptly prepare FD-302(s) documenting the time the following events occurred: 1) (U) The juvenile was arrested; 2) (U) The juvenile was advised of his/her rights; 3) (U) The USAO was notified; 4) (U) The juvenile's parents, guardian, or custodian were notified of the arrest and of the juvenile's rights; and 5) (U) The juvenile was taken before a magistrate judge. E) (U) Interrogation and Interviews - Whether a juvenile may be interrogated between arrest for a federal offense and initial appearance before the magistrate judge depends on the law of the circuit in which the arrest occurs. If interrogation is not permitted in the circuit of arrest, information volunteered by the arrested juvenile concerning his/her guilt must be recorded in the Agent's FD-302. Clarifying questions may be asked if necessary to be certain what the juvenile intended to convey. The volunteered statement may be reduced to writing if such action does not delay the juvenile's appearance before the magistrate judge. A juvenile may always be questioned concerning the guilt of someone else, if such questioning does not delay bringing him/her before the magistrate judge. These rules apply only when the juvenile has 19-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §19 been arrested for a federal offense. They do not apply when the juvenile is suspected of having committed a federal offense but is under arrest by state or local officers on a state or local charge. F) (U) Fingerprinting and Photographing - Agents may not fingerprint or photograph a juvenile unless he/she is to be prosecuted as an adult. Because it is not known at the time of arrest whether the juvenile will be prosecuted as an adult or a juvenile, Agents may not fingerprint or photograph a juvenile without permission of the magistrate judge. Following an adjudication of delinquency based on an offense which , if committed by an adult , would be a felony that is a crime of violence or a violation of 21 U.S .C. § 841 (manufacturing , distributing , dispensing of a controlled substance or possession with the intent to do same) , § 955 (possession of controlled substances on board vessels arriving in or departing the United States) or § 959 (manufacture or distribution of controlled substances for purpose of unlawful importation) , the juvenile must be fingerprinted and photographed. Agents should coordinate fingerprinting and photographing with the USMS . G) (U) DNA Collection - Agents must not take DNA samples from juveniles at the time of arrest. H) (U) Press Releases - Neither the name nor picture of an arrested juvenile may be made public . Accordingly , the arrest of a juvenile may only be announced by a press release that does not contain identifying information . Version Dated. Octohn 1c;, ,:011 19-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §21 20 (U) OTHERINVESTIGATIVE RESOURCES 20.1 (U) OVERVIEW (U) Other investigative resources described below are available as specified in Assessments and Predicated Investigations . The investigative resources include: 20.1.1 (U//FOUO) NAME TRACE REQUESTS (CIA AND NSA) (U) See Section 20.2 below. 20.1.2 (U//FOUO) BLIND FAITH PROGRAM (U) See Section 20.3 below. 20.1.3 (U / /FOUO) BEHAVIORAL ANALYSIS - OPERATIONAL BEHAVIORAL SUPPORT PROGRAM (U) See Section 20.4 below. 20.1.4 (U//FOUO) SENSITIVE TECHNICAL EQUIPMENT (U) See Section 20.5 below. 20.2 (U//FOUO) NAME TRACE REQUESTS (CIAANDNSA) (U/FOUO) A Name Trace Request is a formal request to another government agency to conduct a search of its existing records for information regarding a subject of interest. 20.2.1 (U) AUTHORIZED INVEST/GA TIVE ACTIVITY (U//FOUO) CIA and NSA Name Trace Requests may be used in Assessments and Predicated Investigations. (U) See the classified provisions in DIOG Appendix G for additional information on making a Name Trace Request. 20.3 (U//FOUO) BLINDFAITH PROGRAM (U//FOUO) The Blind Faith Program is an analytical program which provides a technical countermeasures profile for targets of investigative interest to the FBI. These profiles assess the technical sophistication of the intelligence service of a particular target in order to determine its capability to detect and/or nullify technical attacks directed against it. Awareness of a target's capabilities prior to a technical installation permits the selection of technologies appropriate to the level of sophistication of that target , thereby conserving resources . The program reports the 20-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers on Dc1tec: 0Lt<>ber 1c:.,tO 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §21 results of its analysis in the form of a Blind Faith report, which details and describes the technical sophistication of the target. 20.3.1 (U) AUTHORIZEDINVEST/GATIVEACTIVITY (U//FOUO) The Blind Faith Program may be used in Assessments and Predicated Investigations. (U//FOUO) The Blind Faith Program is operated by the Operational Technology Division , Technical Operations Coordination Unit, Technical Evaluation Office (TEO). 20.4 (U//FOUO) OPERATIONAL BEHAVIORAL SUPPORT PROGRAM- BEHAVIORAL ANALYSIS UNITS (BAUs) CIRG's AND/OR CD's BEHAVIORAL ANALYSIS PROGRAM 20.4.1 (U) AUTHORIZEDINVEST/GATIVEACTIVITY (U) The National Center for the Analysis of Violent Crime (NCAVC) manages and directs the FBI's operational behavioral support across all investigative programs. In addition, the NCA VC's units provide operational and analytical support, without charge , to federal, state, local, tribal, foreign law enforcement, intelligence and security agencies involved in the investigation of unusual or repetitive violent crimes , communicated threats, terrorism , and other matters. The NCA VC also provides support through expertise and consultation in non-violent matters, such as national security, corruption , and white-collar crime investigations. See DIOG Section 12 for FD-999 documentation and other requirements for Assistance to Other Agencies. (U) Requests for NCA VC operational assistance should be made to the NCA VC Coordinator in the field office or to the NCA VC unit at Quantico. Requests for service can be coordinated through direct contact, telephone, email or Electronic Communication to the NCA VC. All FBI operational behavioral support requests must be coordinated and approved by the NCA VC. (U) The appropriate Legal Attache office (Legat) or the International Operations Division (IOD) must coordinate all requests from foreign law enforcement, intelligence and security agencies with NCAVC staff. NCAVC staff will assist the Legat or IOD preparation of an appropriate request for service and will facilitate the delivery of the service requested from the foreign agency. (U) For additional information regarding the services provided by NCAVC . 20.5 (U//FOUO) SENSITIVE TECHNICAL EQUIPMENT (U//FOUO) Definition: Sensitive Technical Equipment (STE) is defined in the classified provisions in DIOG Appendix G. 20.5.1 (U) AUTHORIZEDINVESTIGATIVEACTIVITY (U) The use of STE for electronic or physical surveillance may be authorized in Predicated Investigations as set forth in OTD policy. See the classified provisions in DIOG Appendix G for additional information . Version Dated. October 15, 2011 20-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §21 (U//FOUO) All use of STE outside the United States requires the prior approval of the HQ operational division responsible for the investigation, the IOD, and the Operational Technology Division (OTD). Refer to the Extraterritorial Guidelines (see DIOG Section 13), appropriate Policy Implementation Guides, and OTD policy for additional information. 20-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version ~ated: October 1 'i 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide This Page is Intentionally Blank. Version Dated: Octooe· l, 20 l l 4 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §21 21 (U) INTELLIGENCE COLLECTION 21.1 (U) INCIDENTALCOLLECTION (U//FOUO) Intelligence that is responsive to PFI requirements, FBI national collection requirements, and FBI field office collection requirements may be collected incidental to an Assessment or Predicated Investigation. When information that is responsive to these requirements is incidentally collected in an Assessment or Predicated Investigation, it should be forwarded to the Field Intelligence Group (FIG) for evaluation and potential dissemination against collection requirements. (See DIOG Section 15.6.1.2 - Written Intelligence Products) All incidental collection must be documented in the 815I field office file. (U//FOUO) Prior to submitting to the FIG any information that may be evidentiary and therefore potentially discoverable, the FBI employee should discuss with the CDC or OGC the potential impact disseminating the information in an intelligence product may have on the prosecution of the investigation. To the extent dissemination might or is likely to have an adverse impact on the prosecution, the FBI, in consultation with the prosecuting attorney, must assess whether the need for dissemination outweighs the probable impact the dissemination may have on the prosecution. 21.2 (U) FBI NATIONALCOLLECTIONREQUIREMENTS (U//FOUO) The FBIHQ DI establishes FBI national collection requirements after coordination with OGC, other FBIHQ operational divisions, and field offices. An FBI national collection requirement describes infom1ation needed by the FBI to: (i) identify or obtain infom1ation about potential targets of, or vulnerabilities to, Federal criminal activities or threats to the national security; or (ii) inform or facilitate intelligence analysis and planning pertinent to the FBI's law enforcement or national security missions . (U//FOUO) FBI intelligence needs may correspond with "Foreign Intelligence Requirements" issued under the authority of the DNI. An FBI national collection requirement should not be confused with a PFI requirement. A PFI requirement addresses the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons that are not directly related to the FBI's core national security and law enforcement missions. (U) For example: A) (U//FOUO) The USIC seeks information on the presence of Tamil Tigers inside the United States. FBIHQ DI accepts this requirement because it corresponds to the national security mission of the FBI and a National Collection Requirement is published to the full FBI. The field office could open a Type 3 Assessment in the appropriate national security classification to determine the existence and extent of the threat posed to the United States by the Tamil Tigers in its AOR. Any information collected during this Type 3 Assessment can be used to answer this National Collection Requirement and be disseminated appropriately to the USIC. B) (U//FOUO) The USTC seeks information regarding the intentions of the Republic of X to strengthen its military in the wake of hostile actions by the Government ofY. IfFBIHQ DI accepts this requirement as a PFI requirement, a file in the 809-814, or 816 investigative classification series will be opened by the DI. A field office could open a Type 6 Assessment 21-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vt>r<,ion Dated: Cctobu L> 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide §21 to determine if it has the capacity to respond to this requirement in the 809-814, or 816 series file. C) (U//FOUO) The USIC seeks information regarding the Government of Y's intentions vis-a-vis the Republic of X. FBIHQ DI accepts this requirement as a PFI Collection Requirement and opens a file in the 809-814, or 816 investigative classification series. As part of an existing counterintelligence Predicated Investigation, an investigative squad has technical coverage that is yielding information pertinent to this PFI Collection requirement. The investigative squad should share all of the foreign intelligence collected during the course of its investigation with the FIG, which will analyze and disseminate that foreign intelligence information and document its handling of the intelligence in the appropriate 809-814, or 816 classification file. (U//FOUO) Before any investigative activity is conducted in order to respond to an FBI national collection requirement, an Assessment or Predicated Investigation must be opened or already open. An Assessment cannot be opened solely based upon an FBI national collection requirement. An authorized purpose (national security or criminal threat) and clearly defined objective(s) must exist prior to opening an Assessment. During an Assessment, the FBI is authorized to collect against any FBI national collection requirement that is relevant to the Assessment. The FBI is authorized to open an Assessment (or a Full Investigation) to collect on a USIC intelligence requirement only if it has been accepted and designated by FBIHQ DI as a PFI Collection Requirement, as specified in DIOG Section 9. (U//FOUO) To ensure continuity in the dissemination ofreporting against collection requirements, FBIHQ DI provides a unique requirement citation number for each FBI national collection and PFI requirement. The FBIHO DI will determine the method for capturing and tracking these referenced unique identifiers. (U//FOUO) FBIHQ DI provides specific guidance in its policy implementation guide regarding FBI national collection requirements, FBI field office collection requirements (see Section 21.3, below) and PFI requirements. 21.3 (U / /FOUO) FBI FIELD OFFICE COLLECTIONREQUIREMENTS (U//FOUO) An FBI field office collection requirement describes information needed by the field to: (i) identify or obtain information about potential targets of or vulnerabilities to Federal criminal activities or threats to the national security; or (ii) inform or facilitate intelligence analysis and planning pertinent to the FBI's law enforcement or national security missions. (U//FOUO) Before any investigative activity may be conducted to respond to an FBI field office collection requirement, an Assessment or Predicated Investigation must be opened or already open. An Assessment cannot be opened solely based upon an FBI field office collection requirement. Following coordination with the CDC, FBI field office collection requirements are established by the Intelligence Program Coordinator (SSA or SIA), consistent with FBI Nation al Priorities as established by FBIHQ. FBI field office collection requirements may only be levied against the field office creating the requirement. All FBI field office collection requirements must receive a unique requirement citation in accordance with the classified FBI Corporate Requirements Policy. The IPG contains detailed guidance regarding the field office collection requirements. Version Dated· October 15, 2011 21-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide APPENDIXA: (U) THE ATTORNEYGENERAL'SGUIDELINES FOR DOMESTICFBI OPERATIONS A-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide THE ATTORNEY GENERAL'S GUIDELINES FOR DOMESTIC FBI OPERATIONS A-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide PREAMBLE These Guidelines are issued under the authority of the Attorney General as provided in sections 509, 510, 533, and 534 of title 28, United States Code, and Executive Order 12333. They apply to domestic investigative activities of the Federal Bureau of Investigation (FBI) and other activities as provided herein. 2 A-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide TABLE OF CONTENTS INTRODUCTION ............................................................ A. FBI RESPONSIBILITIES - FEDERAL CRIMES, THREATS TO THE NATIONAL SECURITY, FOREIGN INTELLIGENCE ................ B. THE FBI AS AN INTELLIGENCE AGENCY ........................ C. OVERSIGHT ................................................... 5 6 9 10 I. GENERAL AUTHORITIES AND PRINCIPLES ........................... A. SCOPE ........................................................ B. GENERAL AUTHORITIES ...................................... C. USE OF AUTHORITIES AND METHODS .......................... D. NATURE AND APPLICATION OF THE GUIDELINES .............. 12 12 12 12 14 II. INVESTIGATIONS AND INTELLIGENCE GATHERING .................. A. ASSESSMENTS ................................................. B. PREDICATED INVESTIGATIONS ................................ C. ENTERPRISE INVESTIGATIONS ................................ 16 19 20 23 III. ASSISTANCE TO OTHER AGENCIES .................................. A. THE INTELLIGENCE COMMUNITY ............................. B. FEDERAL AGENCIES GENERALLY ............................. C. STATE, LOCAL, OR TRIBAL AGENCIES ......................... D. FOREIGN AGENCIES ...... ... .................................. E. APPLICABLE STANDARDS AND PROCEDURES .................. 25 25 25 27 27 28 IV. INTELLIGENCE ANALYSIS AND PLANNING ........................... A. STRATEGIC INTELLIGENCE ANALYSIS .............. ........... B. REPORTS AND ASSESSMENTS GENERALLY ..................... C. INTELLIGENCE SYSTEMS ...................................... 29 29 29 29 V. AUTHORIZED METHODS ............................................. A. PARTICULAR METHODS ....................................... B. SPECIAL REQUIREMENTS .......... ........................... C. OTHERWISE ILLEGAL ACTIVITY .............................. 31 31 32 33 VI. RETENTION AND SHARING OF INFORMATION ........................ A. RETENTION OF INFORMATION ................................ B. INFORMATION SHARING GENERALLY ......................... C. INFORMATION RELATING TO CRIMINAL MATTERS ............ D. INFORMATION RELATING TO NATIONAL SECURITY AND FOREIGN INTELLIGENCE MATTERS ........................... 35 35 35 36 37 3 A-4 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIE D - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide VII. DEFINITIONS ............ . ........................................... 42 4 A-5 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide INTRODUCTION As the primary investigative agency of the federal government, the Federal Bureau of Investigation (FBI) has the authority and responsibility to investigate all violations of federal law that are not exclusively assigned to another federal agency. The FBI is further vested by law and by Presidential directives with the primary role in carrying out investigations within the United States of threats to the national security. This includes the lead domestic role in investigating international terrorist threats to the United States, and in conducting counterintelligence activities to meet foreign entities' espionage and intelligence efforts directed against the United States. The FBI is also vested with important functions in collecting foreign intelligence as a member agency of the U.S. Intelligence Community. The FBI accordingly plays crucial roles in the enforcement of federal law and the proper administration of justice in the United States, in the protection of the national security, and in obtaining information needed by the United States for the conduct of its foreign affairs. These roles reflect the wide range of the FBI's current responsibilities and obligations, which require the FBI to be both an agency that effectively detects, investigates, and prevents crimes, and an agency that effectively protects the national security and collects intelligence. The general objective of these Guidelines is the full utilization of all authorities and investigative methods, consistent with the Constitution and laws of the United States, to protect the United States and its people from terrorism and other threats to the national security, to protect the United States and its people from victimization by all crimes in violation of federal law, and to further the foreign intelligence objectives of the United States. At the same time, it is axiomatic that the FBI must conduct its investigations and other activities in a lawful and reasonable manner that respects liberty and privacy and avoids unnecessary intrusions into the lives of law-abiding people. The purpose of these Guidelines, therefore, is to establish consistent policy in such matters. They will enable the FBI to perform its duties with effectiveness, certainty, and confidence, and will provide the American people with a firm assurance that the FBI is acting properly under the law. The issuance of these Guidelines represents the culmination of the historical evolution of the FBI and the policies governing its domestic operations subsequent to the September 11, 2001, terrorist attacks on the United States. Reflecting decisions and directives of the President and the Attorney General, inquiries and enactments of Congress, and the conclusions of national commissions, it was recognized that the FBI's functions needed to be expanded and better integrated to meet contemporary realities: [C]ontinuing coordination ... is necessary to optimize the FBI's performance in both national security and criminal investigations . . . . [The] new reality requires first that the FBI and other agencies do a better job of gathering intelligence inside the United States, and second that we eliminate the remnants of the old "wall" between foreign intelligence and domestic law enforcement. Both tasks must be accomplished without sacrificing our domestic liberties and the rule oflaw, and both depend on building a very 5 A-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide different FBI from the one we had on September 10, 2001. (Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction 466, 452 (2005).) In line with these objectives, the FBI has reorganized and reoriented its programs and missions, and the guidelines issued by the Attorney General for FBI operations have been extensively revised over the past several years. Nevertheless, the principal directives of the Attorney General governing the FBI' s conduct of criminal investigations, national security investigations, and foreign intelligence collection have persisted as separate documents involving different standards and procedures for comparable activities. These Guidelines effect a more complete integration and harmonization of standards, thereby providing the FBI and other affected Justice Department components with clearer, more consistent, and more accessible guidance for their activities, and making available to the public in a single document the basic body of rules for the FBI's domestic operations. These Guidelines also incorporate effective oversight measures involving many Department of Justice and FBI components, which have been adopted to ensure that all FBI activities are conducted in a manner consistent with law and policy. The broad operational areas addressed by these Guidelines are the FBI's conduct of investigative and intelligence gathering activities, including cooperation and coordination with other components and agencies in such activities, and the intelligence analysis and planning functions of the FBI. A. FBI RESPONSIBILITIES - FEDERAL CRIMES, THREATS TO THE NATIONAL SECURITY, FOREIGN INTELLIGENCE Part II of these Guidelines authorizes the FBI to carry out investigations to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence. The major subject areas of information gathering activities under these Guidelines - federal crimes, threats to the national security, and foreign intelligence - are not distinct, but rather overlap extensively. For example, an investigation relating to international terrorism will invariably crosscut these areas because international terrorism is included under these Guidelines' definition of "threat to the national security," because international terrorism subject to investigation within the United States usually involves criminal acts that violate federal law, and because information relating to international terrorism also falls within the definition of "foreign intelligence." Likewise, counterintelligence activities relating to espionage are likely to concern matters that constitute threats to the national security, that implicate violations or potential violations of federal espionage laws, and that involve information falling under the definition of "foreign intelligence." While some distinctions in the requirements and procedures for investigations are necessary in different subject areas, the general design of these Guidelines is to take a uniform 6 A-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide approach wherever possible, thereby promoting certainty and consistency regarding the applicable standards and facilitating compliance with those standards. Hence, these Guidelines do not require that the FBI's information gathering activities be differentially labeled as "criminal investigations," "national security investigations," or "foreign intelligence collections," or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI's legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States' foreign intelligence objectives. In many cases, a single investigation will be supportable as an exercise of a number of these authorities i.e., as an investigation of a federal crime or crimes, as an investigation of a threat to the national security, and/or as a collection of foreign intelligence. 1. Federal Crimes The FBI has the authority to investigate all federal crimes that are not exclusively assigned to other agencies. In most ordinary criminal investigations, the immediate objectives include such matters as: determining whether a federal crime has occurred or is occurring, or if planning or preparation for such a crime is taking place; identifying, locating, and apprehending the perpetrators; and obtaining the evidence needed for prosecution. Hence, close cooperation and coordination with federal prosecutors in the United States Attorneys' Offices and the Justice Department litigating divisions are essential both to ensure that agents have the investigative tools and legal advice at their disposal for which prosecutorial assistance or approval is needed, and to ensure that investigations are conducted in a manner that will lead to successful prosecution. Provisions in many parts of these Guidelines establish procedures and requirements for such coordination. 2. Threats to the National Security The FBI' s authority to investigate threats to the national security derives from the executive order concerning U.S. intelligence activities, from delegations of functions by the Attorney General, and from various statutory sources. See, e.g., E.O. 12333; 50 U.S.C. 401 et seq.; 50 U.S.C. 1801 et seq. These Guidelines (Part VII.S) specifically define threats to the national security to mean: international terrorism; espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers, organizations, or persons; foreign computer intrusion; and other matters determined by the Attorney General, consistent with Executive Order 12333 or any successor order. Activities within the definition of "threat to the national security'' that are subject to investigation under these Guidelines commonly involve violations (or potential violations) of federal criminal laws. Hence, investigations of such threats may constitute an exercise both of the FBI's criminal investigation authority and of the FBI's authority to investigate threats to the national security. As with criminal investigations generally, detecting and solving the crimes, and eventually arresting and prosecuting the perpetrators, are likely to be among the objectives of 7 A-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : Octob er 15, 20 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide investigations relating to threats to the national security. But these investigations also often serve important purposes outside the ambit of normal criminal investigation and prosecution, by providing the basis for, and informing decisions concerning, other measures needed to protect the national security. These measures may include, for example: excluding or removing persons involved in terrorism or espionage from the United States; recruitment of double agents; freezing assets of organizations that engage in or support terrorism; securing targets of terrorism or espionage; providing threat information and warnings to other federal, state, local, and private agencies and entities; diplomatic or military actions; and actions by other intelligence agencies to counter international terrorism or other national security threats. In line with this broad range of purposes, investigations of threats to the national security present special needs to coordinate with other Justice Department components, including particularly the Justice Department's National Security Division, and to share information and cooperate with other agencies with national security responsibilities, including other agencies of the U.S. Intelligence Community, the Department of Homeland Security, and relevant White House (including National Security Council and Homeland Security Council) agencies and entities. Various provisions in these Guidelines establish procedures and requirements to facilitate such coordination. 3. Foreign Intelligence As with the investigation of threats to the national security, the FBI's authority to collect foreign intelligence derives from a mixture of administrative and statutory sources. See, e.g., E.O. 12333; 50 U.S.C. 401 et seq.; 50 U.S.C. 1801 et seq.; 28 U.S.C. 532 note (incorporating P.L. 108-458 §§ 2001-2003). These Guidelines (Part VILE) define foreign intelligence to mean "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists." The FBI' s foreign intelligence collection activities have been expanded by legislative and administrative re.forms subsequent to the September 11, 2001, terrorist attacks, reflecting the FBI's role as the primary collector of foreign intelligence within the United States, and the recognized imperative that the United States' foreign intelligence collection activities become more flexible, more proactive, and more efficient in order to protect the homeland and adequately inform the United States' crucial decisions in its dealings with the rest of the world: The collection of information is the foundation of everything that the Intelligence Community does. While successful collection cannot ensure a good analytical product, the failure to collect information ... turns analysis into guesswork. And as our review demonstrates, the Intelligence Community's human and technical intelligence collection agencies have collected far too little information on many of the issues we care about most. (Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction 351 (2005).) 8 A-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide These Guidelines accordingly provide standards and procedures for the FBI' s foreign intelligence collection activities that meet current needs and realities and optimize the FBI' s ability to discharge its foreign intelligence collection functions. The authority to collect foreign intelligence extends the sphere of the FBI's information gathering activities beyond federal crimes and threats to the national security, and permits the FBI to seek information regarding a broader range of matters relating to foreign powers, organizations, or persons that may be of interest to the conduct of the United States' foreign affairs. The FBI's role is central to the effective collection of foreign intelligence within the United States because the authorized domestic activities of other intelligence agencies are more constrained than those of the FBI under applicable statutes and Executive Order 12333. In collecting foreign intelligence, the FBI will generally be guided by nationally-determined intelligence requirements, including the National Intelligence Priorities Framework and the National HUMINT Collection Directives, or any successor directives issued under the authority of the Director of National Intelligence (DNI). As provided in Part VII.F of these Guidelines, foreign intelligence requirements may also be established by the President or Intelligence Community officials designated by the President, and by the Attorney General, the Deputy Attorney General, or an official designated by the Attorney General. The general guidance of the FBI's foreign intelligence collection activities by DNIauthorized requirements does not, however, limit the FBI' s authority to -conduct investigations supportable on the basis of its other authorities - to investigate federal crimes and threats to the national security - in areas in which the information sought also falls under the definition of foreign intelligence. The FBI conducts investigations of federal crimes and threats to the national security based on priorities and strategic objectives set by the Department of Justice and the FBI, independent ofDNl-established foreign ir:itelligence collection requirements . Since the authority to collect foreign intelligence enables the FBI to obtain information pertinent to the United States' conduct of its foreign affairs, even if that information is not related to criminal activity or threats to the national security, the information so gathered may concern lawful activities. The FBI should accordingly operate openly and consensually with U .S. persons to the extent practicable when collecting foreign intelligence that does not concern criminal activities or threats to the national security. B. THE FBI AS AN INTELLIGENCE AGENCY The FBI is an intelligence agency as well as a law enforcement agency. Its basic functions accordingly extend beyond limited investigations of discrete matters, and include broader analytic and planning functions. The FBI's responsibilities in this area derive from various administrative and statutory sources. See, e.g., E.O. 12333; 28 U.S.C. 532 note (incorporating P.L. 108-458 §§ 2001-2003) and 534 note (incorporating P.L. 109-162 § 1107). Enhancement of the FBI' s intelligence analysis capabilities and functions has consistently been recognized as a key priority in the legislative and administrative reform efforts following the 9 A-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide September 11, 2001, terrorist attacks: [Counterterrorism] strategy should ... encompass specific efforts to ... enhance the depth and quality of domestic intelligence collection and analysis .... [T]he FBI should strengthen and improve its domestic [intelligence] capability as fully and expeditiously as possible by immediately instituting measures to ... significantly improve strategic analytical capabilities . . . . (Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, S. Rep. No. 351 & H.R. Rep. No. 792, 107th Cong., 2d Sess. 4-7 (2002) ( errata print).) A "smart" government would integrate all sources of information to see the enemy as a whole. Integrated all-source analysis should also inform and shape strategies to collect more intelligence .... The importance of integrated, all-source analysis cannot be overstated. Without it, it is not possible to "connect the dots." (Final Report of the National Commission on Terrorist Attacks Upon the United States 401, 408 (2004).) Part IV of these Guidelines accordingly authorizes the FBI to engage in intelligence analysis and planning, drawing on all lawful sources of information. The functions authorized under that Part include: (i) development of overviews and analyses concerning threats to and vulnerabilities of the United States and its interests, (ii) research and analysis to produce reports and assessments concerning matters relevant to investigative activities or othe_rauthorized FBI activities, and (iii) the operation of intelligence systems that facilitate and support investigations through the compilation and analysis of data and information on an ongoing basis. C. OVERSIGHT The activities authorized by these Guidelines must be conducted in a manner consistent with all applicable laws, regulations, and policies, including those protecting privacy and civil liberties. The Justice Department's National Security Division and the FBI's Inspection Division, Office of General Counsel, and Office of Integrity and Compliance, along with other components, share the responsibility to ensure that the Department meets these goals with respect to national security and foreign intelligence matters. In particular, the National Security Division's Oversight Section, in conjunction with the FBI's Office of General Counsel, is responsible for conducting regular reviews of all aspects of FBI national security and foreign intelligence activities. These reviews, conducted at FBI field offices and headquarter units, broadly examine such activities for compliance with these Guidelines and other applicable requirements. Various features of these Guidelines facilitate the National Security Division's oversight functions. Relevant requirements and provisions include: (i) required notification by the FBI to the National Security Division concerning full investigations that involve foreign intelligence collection or investigation of United States persons in relation to threats of the national security, (ii) annual reports by the FBI to the National Security Division concerning the FBI's foreign 10 A-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide intelligence collection program, including information on the scope and nature of foreign intelligence collection activities in each FBI field office, and (iii) access by the National Security Division to information obtained by the FBI through national security or foreign intelligence activities and general authority for the Assistant Attorney General for National Security to obtain reports from the FBI concerning these activities. Pursuant to these Guidelines, other Attorney General guidelines, and institutional assignments of responsibility within the Justice Department, additional Department components -including the Criminal Division, the United States Attorneys' Offices, and the Office of Privacy and Civil Liberties - are involved in the common endeavor with the FBI of ensuring that the activities of all Department components are lawful, appropriate, and ethical as well as effective. Examples include the involvement of both FBI and prosecutorial personnel in the review of undercover operations involving sensitive circumstances, notice requirements for investigations involving sensitive investigative matters (as defined in Part VII.N of these Guidelines), and notice and oversight provisions for enterprise investigations, which may involve a broad examination of groups implicated in the gravest criminal and national security threats. These requirements and procedures help to ensure that the rule of law is respected in the Department's activities and that public confidence is maintained in these activities. 11 A-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide I. GENERAL AUTHORITIES AND PRINCIPLES A. SCOPE These Guidelines apply to investigative activities conducted by the FBI within the United States or outside the territories of all countries. They do not apply to investigative activities of the FBI in foreign countries, which are governed by the Attorney General's Guidelines for Extraterritorial FBI Operations. B. GENERAL AUTHORITIES 1. C. The FBI is authorized to conduct investigations to detect, obtain information about, and prevent and protect against federal crimes and threats to the national · security and to collect foreign intelligence, as provided in Part II of these Guidelines. 2. The FBI is authorized to provide investigative assistance to other federal agencies, state, local, or tribal agencies, and foreign agencies as provided in Part III of these Guidelines. 3. The FBI is authorized to conduct intelligence analysis and planning as provided in Part N of these Guidelines. 4. The FBI is authorized to retain and share information obtained pursuant to these Guidelines as provided in Part VI of these Guidelines. USE OF AUTHORITIES AND METHODS 1. Protection of the United States and Its People The FBI shall fully utilize the authorities provided and the methods authorized by these Guidelines to protect the United States and its people from crimes in violation of federal law and threats to the national security, and to further the foreign intelligence objectives of the United States. 2. Choice of Methods a. The conduct of investigations and other activities authorized by these Guidelines may present choices between the use of different investigative methods that are each operationally sound and effective, but that are more or less intrusive, considering such factors as the effect on the privacy and civil liberties of individuals and potential damage to reputation. The least intrusive method feasible is to be used in such situations. It is recognized, 12 A-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide however, that the choice of methods is a matter of judgment. The FBI shall not hesitate to use any lawful method consistent with these Guidelines, even if intrusive, where the degree of intrusiveness is warranted in light of the seriousness of a criminal or national security threat or the strength of the information indicating its existence, or in light of the importance of foreign intelligence sought to the United States' interests. This point is to be particularly observed in investigations relating to terrorism. b. 3. United States persons shall be dealt with openly and consensually to the extent practicable when collecting foreign intelligence that does not concern criminal activities or threats to the national security. Respect for Legal Rights All activities under these Guidelines must have a valid purpose consistent with these Guidelines, and must be carried out in conformity with the Constitution and all applicable statutes, executive orders, Department of Justice regulations and policies, and Attorney General guidelines. These Guidelines do not authorize investigating or collecting or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States. These Guidelines also do not authorize any conduct prohibited by the Guidance Regarding the Use of Race by Federal Law Enforcement Agencies. 4. Undisclosed Participation in Organizations Undisclosed participation in organizations in activities under these Guidelines shall be conducted in accordance with FBI policy approved by the Attorney General. 5. Maintenance of Records under the Privacy Act The Privacy Act restricts the maintenance of records relating to certain activities of individuals who are United States persons, with exceptions for circumstances in which the collection of such information is pertinent to and within the scope of an authorized law enforcement activity or is otherwise authorized by statute. 5 U.S.C. 552a(e)(7). Activities authorized by these Guidelines are authorized law enforcement activities or activities for which there is otherwise statutory authority for purposes of the Privacy Act. These Guidelines, however, do not provide an exhaustive enumeration of authorized FBI law enforcement activities or FBI activities for which there is otherwise statutory authority, and no restriction is implied with respect to such activities carried out by the FBI pursuant to other 13 A-14 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide authorities. Further questions about the application of the Privacy Act to authorized activities of the FBI should be addressed to the FBI Office of the General Counsel, the FBI Privacy and Civil Liberties Unit, or the Department of Justice Office of Privacy and Civil Liberties. D. NATURE AND APPLICATION OF THE GUIDELINES 1. Repealers These Guidelines supersede the following guidelines, which are hereby repealed: 2. a. The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations (May 30, 2002) and all predecessor guidelines thereto. b. The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (October 31, 2003) and all predecessor guidelines thereto. c. The Attorney General's Supplemental Guidelines for Collection, Retention, and Dissemination of Foreign Intelligence (November 29, 2006). d. The Attorney General Procedure for Reporting and Use of Information Concerning Violations of Law and Authorization for Participation in Otherwise Illegal Activity in FBI Foreign Intelligence, Counterintelligence or International Terrorism Intelligence Investigations (August 8, 1988). e. The Attorney General's Guidelines for Reporting on Civil Disorders and Demonstrations Involving a Federal Interest (April 5, 1976). ' Status as Internal Guidance These Guidelines 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 by law by any party in any matter, civil or criminal, nor do they place any limitation on otherwise lawful investigative and litigative prerogatives of the Department of Justice. 3. Departures from the Guidelines Departures from these Guidelines must be approved by the Director of the FBI, by the Deputy Director of the FBI, or by an Executive Assistant Director designated 14 A-15 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide by the Director. If a departure is necessary without such prior approval because of the immediacy or gravity of a threat to the safety of persons or property or to the national security, the Director, the Deputy Director, or a designated Executive Assistant Director shall be notified as soon thereafter as practicable. The FBI shall provide timely written notice of departures from these Guidelines to the Criminal Division and the National Security Division, and those divisions shall notify the Attorney General and the Deputy Attorney General. Notwithstanding this paragraph, all activities in all circumstances must be carried out in a manner consistent with the Constitution and laws of the United States. 4. Other Activities Not Limited These Guidelines apply to FBI activities as provided herein and do not limit other authorized activities of the FBI, such as the FBI's responsibilities to conduct background checks and inquiries concerning applicants and employees under federal personnel security programs, the FBI's maintenance and operation of national criminal records systems and preparation of national crime statistics, and the forensic assistance and administration functions of the FBI Laboratory. 15 A-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED- FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide II. INVESTIGATIONS AND INTELLIGENCE GATHERING This Part of the Guidelines authorizes the FBI to conduct investigations to detect, obtain information about, and prevent and protect against federal crimes and threats to the national security and to collect foreign intelligence. When an authorized purpose exists, the focus of activities authorized by this Part may be whatever the circumstances warrant. The subject of such an activity may be, for example, a particular crime or threatened crime; conduct constituting a threat to the national security; an individual, group, or organization that may be involved in criminal or national securitythreatening conduct; or a topical matter of foreign intelligence interest. Investigations may also be undertaken for protective purposes in relation to individuals, groups, or other entities that may be targeted for criminal victimization or acquisition, or for terrorist attack or other depredations by the enemies of the United States. For example, the participation of the FBI in special events management, in relation to public events or other activities whose character may make them attractive targets for terrorist attack, is an authorized exercise of the authorities conveyed by these Guidelines. Likewise, FBI counterintelligence activities directed to identifying and securing facilities, personnel, or information that may be targeted for infiltration, recruitment, or acquisition by foreign intelligence services are authorized exercises of the authorities conveyed by these Guidelines. The identification and recruitment of human sources - who may be able to provide or obtain information relating to criminal activities, information relating to terrorism, espionage, or other threats to the national security, or information relating to matters of foreign intelligence interest - is also critical to the effectiveness of the FBI' s law enforcement, national security, and intelligence programs, and activities undertaken for this purpose are authorized and encouraged. The scope of authorized activities under this Part is not limited to "investigation" in a narrow sense, such as solving particular cases or obtaining evidence for use in particular criminal prosecutions. Rather, these activities also provide critical information needed for broader analytic and intelligence purposes to facilitate the solution and prevention of crime, protect the national security, and further foreign intelligence objectives. These purposes include use of the information in intelligence analysis and planning under Part IV, and dissemination of the information to other law enforcement, Intelligence Community, and White House agencies under Part VI. Information obtained at all stages of investigative activity is accordingly to be retained and disseminated for these purposes as provided in these Guidelines, or in FBI policy consistent with these Guidelines, regardless of whether it furthers investigative objectives in a narrower or more immediate sense. In the course of activities under these Guidelines, the FBI may incidentally obtain information relating to matters outside of its areas of primary investigative responsibility . For example, information relating to violations of state or local law or foreign law may be 16 A-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide incidentally obtained in the course of investigating federal crimes or threats to the national security or in collecting foreign intelligence. These Guidelines do not bar the acquisition of such information in the course of authorized investigative activities, the retention of such information, or its dissemination as appropriate to the responsible authorities in other agencies or jurisdictions. Part VI of these Guidelines includes specific authorizations and requirements for sharing such information with relevant agencies and officials. This Part authorizes different levels of information gathering activity, which afford the FBI flexibility, under appropriate standards and procedures, to adapt the methods utilized and the information sought to the nature of the matter under investigation and the character of the information supporting the need for investigation. Assessments, authorized by Subpart A of this Part, require an authorized purpose but not any particular factual predication. For example, 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. Likewise, in the exercise of its protective functions, the FBI is not constrained to wait until information is received indicating that a particular event, activity, or facility has drawn the attention of those who would threaten the national security. Rather, the FBI must take the initiative to secure and protect activities and entities whose character may make them attractive targets for terrorism or espionage. The proactive investigative authority conveyed in assessments is designed for, and may be utilized by, the FBI in the discharge of these responsibilities. For example, assessments may be conducted as part of the FBI' s special events management activities. More broadly, detecting and interrupting criminal activities at their early stages, and preventing crimes from occurring in the first place, is preferable to allowing criminal plots and activities to come to fruition. Hence, assessments may be undertaken proactively with such objectives as detecting criminal activities; obtaining information on individuals, groups, or organizations of possible investigative interest, either because they may be involved in criminal or national security-threatening activities or because they may be targeted for attack or victimization by such activities; and identifying and assessing individuals who may have value as human sources. For example, assessment activities may involve proactively surfing the Internet to find publicly accessible websites and services through which recruitment by terrorist organizations and promotion of terrorist crimes is openly taking place; through which child pornography is advertised and traded; through which efforts are made by sexual predators to lure children for purposes of sexual abuse; or through which .fraudulent schemes are perpetrated against the public. The methods authorized in assessments are generally those ofrelatively low intrusiveness, such as obtaining publicly available information, checking government records, 17 A-18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide and requesting information from members of the public. These Guidelines do not impose supervisory approval requirements in assessments, given the types of techniques that are authorized at this stage (e.g., perusing the Internet for publicly available information). However, FBI policy will prescribe supervisory approval requirements for certain assessments, considering such matters as the purpose of the assessment and the methods being utilized. Beyond the proactive information gathering functions described above, assessments may be used when allegations or other information concerning crimes or threats to the national security is received or obtained, and the matter can be checked out or resolved through the relatively non-intrusive methods authorized in assessments. The checking of investigative leads in this manner can avoid the need to proceed to more formal levels of investigative activity, if the results of an assessment indicate that further investigation is not warranted. Subpart B of this Part authorizes a second level of investigative activity, predicated investigations. The purposes or objectives of predicated investigations are essentially the same as those of assessments, but predication as provided in these Guidelines is needed - generally, allegations, reports, facts or circumstances indicative of possible criminal or national securitythreatening activity, or the potential for ~cquiring information responsive to foreign intelligence requirements - and supervisory approval must be obtained, to initiate predicated investigations. Corresponding to the stronger predication and approval requirements, all lawful methods may be used in predicated investigations. A classified directive provides further specification concerning circumstances supporting certain predicated investigations. Predicated investigations that concern federal crimes or threats to the national security are subdivided into preliminary investigations and full investigations. Preliminary investigations may be initiated on the basis of any allegation or information indicative of possible criminal or national security-threatening activity, but more substantial factual predication is required for full investigations. While time limits are set for the completion of preliminary investigations, full investigations may be pursued without preset limits on their duration. The final investigative category under this Part of the Guidelines is enterprise investigations, authorized by Subpart C, which permit a general examination of the structure, scope, and nature of certain groups and organizations. Enterprise investigations are a type of full investigations. Hence, they are subject to the purpose, approval, and predication requirements that apply to full investigations, and all lawful methods may be used in carrying them out. The distinctive characteristic of enterprise investigations is that they concern groups or organizations that may be involved in the most serious criminal or national security threats to the public generally, patterns of racketeering activity, terrorism or other threats to the national security, or the commission of offenses characteristically involved in terrorism as described in 18 U.S.C. 2332b(g)(5)(B). A broad examination of the characteristics of groups satisfying these criteria is authorized in enterprise investigations, including any relationship of the group to a foreign power, its size and composition, its geographic dimensions and finances, its past acts and goals, and its capacity for harm. 18 A-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide A. ASSESSMENTS 1. Purposes Assessments may be carried out to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence. 2. Approval The conduct of assessments is subject to any supervisory approval requirements prescribed by FBI policy. 3. Authorized Activities Activities that may be carried out for the purposes described in paragraph 1. in an assessment include: a. seeking information, proactively or in response to investigative leads, relating to: 1. activities constituting violations of federal criminal law or threats to the national security, 11. the involvement or role of individuals, groups, or organizations in such activities; or 111. matters of foreign intelligence interest responsive to foreign intelligence requirements; b. identifying and obtaining information about potential targets of or vulnerabilities to criminal activities in violation of federal law or threats to the national security; c. seeking information to identify potential human sources, assess the suitability, credibility, or value of individuals as human sources, validate human sources, or maintain the cover or credibility of human sources, who may be able to provide or obtain information relating to criminal activities in violation of federal law, threats to the national security, or matters of foreign intelligence interest; and d. obtaining information to inform or facilitate intelligence analysis and planning as described in Part IV of these Guidelines. 19 A-20 UNCLASSIFI ED - FOR OFF ICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 4. Authorized Methods Only the following methods may be used in assessments: B. a. Obtain publicly available information. b. Access and examine FBI and other Department of Justice records, and obtain information from any FBI or other Department of Justice personnel. c. Access and examine records maintained by, and request information from, other federal, state, local, or tribal, or foreign governmental entities or agencies. d. Use online services and resources (whether nonprofit or commercial). e. Use and recruit human sources in conformity with the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources. f. Interview or request information from members of the public and private entities. g. Accept information voluntarily provided by governn:iental or private entities. h. Engage in observation or surveillance not requiring a court order. 1. Grand jury subpoenas for telephone or electronic mail subscriber information. PREDICATED INVESTIGATIONS 1. Purposes .Predicated investigations may be carried out to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence. · 2. Approval The initiation of a predicated investigation requires supervisory approval at a level or levels specified by FBI policy. A predicated investigation based on paragraph 3.c. (relating to foreign intelligence) must be approved by a Special Agent in Charge or by an FBI Headquarters official as provided in such policy. 20 A-21 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 3. Circumstances Warranting Investigation A predicated investigation may be initiated on the basis of any of the following circumstances: 4. a. An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity. b. An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat. c. The investigation may obtain foreign intelligence that is responsive to a foreign intelligence requirement. Preliminary and Full Investigations A predicated investigation relating to a federal crime or threat to the national security may be conducted as a preliminary investigation or a full investigation. A predicated investigation that is based solely on the authority to collect foreign intelligence may be conducted only as a full investigation. a. Preliminary investigations i. Predication Required for Preliminary Investigations A preliminary investigation may be initiated on the basis of information or an allegation indicating the existence of a circumstance described in paragraph 3.a.-.b. ii. Duration of Preliminary Investigations A preliminary investigation must be concluded within six months of its initiation, which may be extended by up to six months by the Special Agent in Charge. Extensions of preliminary investigations beyond a year must be approved by FBI Headquarters. 21 A-22 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 201 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domest ic Investigations and Operations Guide iii. Methods Allowed in Preliminary Investigations All lawful methods may be used in a preliminary investigation except for methods within the scope of Part V.A.11.-.13. of these Guidelines. b. Full Investigations i. Predication Required for Full Investigations A full investigation may be initiated ifthere is an articulable factual basis for the investigation that reasonably indicates that a circumstance described in paragraph 3.a.-.b. exists or if a circumstance described in paragraph 3.c. exists. ii. Methods Allowed in Full Investigations All lawful methods may be used in a full investigation. 5. Notice Requirements a. An FBI field office shall notify FBI Headquarters and the United States Attorney or other appropriate Department of Justice official of the initiation by the field office of a predicated investigation involving a sensitive investigative matter. If the investigation is initiated by FBI Headquarters, FBI Headquarters shall notify the United States Attorney or other appropriate Department of Justice official of the initiation of such an investigation. If the investigation concerns a threat to the national security, an official of the National Security Division must be notified. The notice shall identify all sensitive investigative matters involved in the investigation. b. The FBI shall notify the National Security Division of: c. 1. the initiation of any full investigation of a United States person relating to a threat to the national security; and 11. the initiation of any full investigation that is based on paragraph 3.c. (relating to foreign intelligence). The notifications under subparagraphs a. and b. shall be made as soon as practicable, but no later than 30 days after the initiation of an investigation. 22 A-2 3 UNCLASS IFIED - FOR OFFICIAL USE ONLY Vers ion Dated : October 15, 2011 UNCLASSIF IED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide d. C. The FBI shall notify the Deputy Attorney General if FBI Headquarters disapproves a field office's initiation of a predicated investigation relating to a threat to the national security on the ground that the predication for the investigation is insufficient. ENTERPRISE INVESTIGATIONS 1. Definition A full investigation of a group or organization may be initiated as an enterprise investigation if there is an articulable factual basis for the investigation that reasonably indicates that the group or organization may have engaged or may be engaged in, or may have or may be engaged in planning or preparation or provision of support for: 2. a. a pattern ofracketeering activity as defined in 18 U.S.C. 1961(5); b. international terrorism or other threat to the national security; c. domestic terrorism as defined in 18 U.S.C. 2331(5) involving a violation of federal criminal law; d. furthering political or social goals wholly or in part through activities that involve force or violence and a violation of federal criminal law; or e. an offense described in 18 U.S.C. 2332b(g)(5)(B) or 18 U.S.C . 43. Scope The information sought in an enterprise investigation may include a general examination of the structure, scope, and nature of the group or organization including: its relationship, if any, to a foreign power; the identity and relationship of its members, employees, or other persons who may be acting in furtherance of its objectives; its finances and resources; its geographical dimensions; and its past and future activities and goals. 3. Notice and Reporting Requirements a. The responsible Department of Justice component for the purpose of notification and reports in enterprise investigations is the National Security Division, except that, for the purpose of notifications and reports in an enterprise investigation relating to a pattern of racketeering activity that does not involve an offense or offenses described in 18 U.S.C. 2332b(g)(5)(B), the responsible Department of Justice component is the 23 A-24 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 2011 UNCLASSIFIED - FOR OFF ICIAL USE ONLY Domest ic Investigations and Operations Guide Organized Crime and Racketeering Section of the Criminal Division. b. An FBI field office shall notify FBI Headquarters of the initiation by the field office of an enterprise investigation. c. The FBI shall notify the National Security Division or the Organized Crime and Racketeering Section of the initiation of an enterprise investigation, whether by a field office or by FBI Headquarters, and the component so notified shall notify the Attorney General and the Deputy Attorney General. The FBI shall also notify any relevant United States Attorney's Office, except that any investigation within the scope of Part VI.D. l .d of these Guidelines (relating to counterintelligence investigations) is to be treated as provided in that provision. Notifications by the FBI under this subparagraph shall be provided as soon as practicable, but no later than 30 days after the initiation of the investigation. d. The Assistant Attorney General for National Security or the Chief of the Organized Crime and Racketeering Section, as appropriate, may at any time request the FBI to provide a report on the status of an enterprise investigation and the FBI will provide such reports as requested. 24 A-25 UNCLASS IFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide III. ASSISTANCE TO OTHER AGENCIES The FBI is authorized to provide investigative assistance to other federal, state, local, or tribal, or foreign agencies as provided in this Part. The investigative assistance authorized by this Part is often concerned with the same objectives as those identified in Part Il of these Guidelines - investigating federal crimes and threats to the national security, and collecting foreign intelligence. In some cases, however, investigative assistance to other agencies is legally authorized for purposes other than those identified in Part Il, such as assistance in certain contexts to state or local agencies in the investigation of crimes under state or local law, see 28 U.S.C. 540, 540A, 540B, and assistance to foreign agencies in the investigation of foreign law violations pursuant to international agreements. Investigative assistance for such legally authorized purposes is permitted under this Part, even if it is not for purposes identified as grounds for investigation under Part Il. The authorities provided by this Part are cumulative to Part Il and do not limit the FBI' s investigative activities under Part II. For example, Subpart B.2 in this Part authorizes investigative activities by the FBI in certain circumstances to inform decisions by the President concerning the deployment of troops to deal with civil disorders, and Subpart B.3 authorizes investigative activities to facilitate demonstrations and related public health and safety measures. The requirements and limitations in these provisions for conducting investigations for the specified purposes do not limit the FBI's authority under Part Il to investigate federal crimes or threats to the national security that occur in the context of or in connection with civil disorders or demonstrations. A. THE INTELLIGENCE COMMUNITY The FBI may provide investigative assistance (including operational support) to authorized intelligence activities of other Intelligence Community agencies. B. FEDERAL AGENCIES GENERALLY 1. In General The FBI may provide assistance to any federal agency in the investigation of federal crimes or threats to the national security or in the collection of foreign intelligence, and investigative assistance to any federal agency for any other purpose that may be legally authorized, including investigative assistance to the Secret Service in support of its protective responsibilities. 2. The President in Relation to Civil Disorders a. At the direction of the Attorney General, the Deputy Attorney General, or 25 A-26 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide the Assistant Attorney General for the Criminal Division, the FBI shall collect information relating to actual or threatened civil disorders to assist the President in determining (pursuant to the authority of the President under 10 U.S.C. 331-33) whether use of the armed forces or militia is required and how a decision to commit troops should be implemented. The information sought shall concern such matters as: 3. 1. The size of the actual or threatened disorder, both in number of people involved or affected and in geographic area. 11. The potential for violence. 111. The potential for expansion of the disorder in light of community conditions and underlying causes of the disorder. 1v. The relationship of the actual or threatened disorder to the enforcement of federal law or court orders and the likelihood that state or local authorities will assist in enforcing those laws or orders. v. The extent of state or local resources available to handle the disorder. b. Investigations under this paragraph will be authorized only for a period of 30 days, but the authorization may be renewed for subsequent 30 day periods. c. Notwithstanding Subpart E.2 of this Part, the methods that may be used in an investigation under this paragraph are those described in subparagraphs a.-.d., subparagraph f. (other than pretext interviews or requests), or subparagraph g. of Part Il.A.4 of these Guidelines. The Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division may also authorize the use of other methods described in Part Il.A.4. Public Health and Safety Authorities in Relation to Demonstrations a. At the direction of the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division, the FBI shall collect information relating to demonstration activities that are likely to require the federal government to take action to facilitate the activities and provide public health and safety measures with respect to those activities. The information sought in such an investigation shall be that needed to facilitate an adequate federal response to ensure public health and safety 26 A-27 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide and to protect the exercise of First Amendment rights, such as: b. C. 1. The time, place, and type of activities planned. 11. The number of persons expected to participate. m. The expected means and routes of travel for participants and expected time of arrival. 1v. Any plans for lodging or housing of participants in connection with the demonstration. Notwithstanding Subpart E.2 of this Part, the methods that may be used in an investigation under this paragraph are those described in subparagraphs a.-.d., subparagraph f. (other than pretext interviews or requests), or subparagraph g. of Part II.A.4 of these Guidelines. The Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division may also authorize the use of other methods described in Part II.A.4. STATE, LOCAL, OR TRIBAL AGENCIES The FBI may provide investigative assistance to state, local, or tribal agencies in the investigation of matters that may involve federal crimes or threats to the national security, or for such other purposes as may be legally authorized. D. FOREIGN AGENCIES 1. At the request of foreign law enforcement, intelligence, or security agencies, the FBI may conduct investigations or provide assistance to investigations by such agencies, consistent with the interests of the United States (including national security interests) and with due consideration of the effect on any United States person. Investigations or assistance under this paragraph must be approved as provided by FBI policy. The FBI shall notify the National Security Division concerning investigation or assistance under this paragraph where: (i) FBI Headquarters approval for the activity is required pursuant to the approval policy adopted by the FBI for purposes of this paragraph, and (ii) the activity relates to a threat to the national security. Notification to the National Security Division shall be made as soon as practicable but no later than 30 days after the approval. Provisions regarding notification to or coordination with the Central Intelligence Agency by the F;BI in memoranda of understanding or agreements with the Central Intelligence Agency may also apply to activities under this paragraph. 2. The FBI may not provide assistance to foreign law enforcement, intelligence, or 27 A-28 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated October 15, 20 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide security officers conducting investigations within the United States unless such officers have provided prior notification to the Attorney General as required by 18 u.s.c.951. E. 3. The FBI may conduct background inquiries concerning consenting individuals when requested by foreign government agencies. 4. The FBI may provide other material and technical assistance to foreign governments to the extent not otherwise prohibited by law. APPLICABLE STANDARDS AND PROCEDURES 1. Authorized investigative assistance by the FBI to other agencies under this Part includes joint operations and activities with such agencies. 2. All lawful methods may be used in investigative assistance activities under this Part. 3. Where the methods used in investigative assistance activities under this Part go beyond the methods authorized in assessments under Part II.A.4 of these Guidelines, the following apply: a. Supervisory approval must be obtained for the activity at a level or levels specified in FBI policy. b. Notice must be provided concerning sensitive investigative matters in the manner described in Part II.B.5. c. A database or records system must be maintained that permits, with respect to each such activity, the prompt retrieval of the status of the activity (open or closed), the dates of opening and closing, and the basis for the activity. This database or records system may be combined with the database or records system for predicated investigations required by Part VI.A.2. 28 A-29 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide IV. INTELLIGENCE ANALYSIS AND PLANNING The FBI is authorized to engage in analysis and planning. The FBI' s analytic activities enable the FBI to identify and understand trends, causes, and potential indicia of criminal activity and other threats to the United States that would not be apparent from the investigation of discrete matters alone. By means of intelligence analysis and strategic planning, the FBI can more effectively discover crimes, threats to the national security, and other matters of national intelligence interest and can provide the critical support needed for the effective discharge of its investigative responsibilities and other authorized activities. For example, analysis of threats in the context of special events management, concerning public events or activities that may be targeted for terrorist attack, is an authorized activity under this Part. In carrying out its intelligence functions under this Part, the FBI is authorized to draw on all lawful sources of information, including but not limited to the results of investigative activities under these Guidelines. Investigative activities under these Guidelines and other legally authorized activities through which the FBI acquires information, data, or intelligence may properly be utilized, structured, and prioritized so as to support and effectuate the FBI's intelligence mission. The remainder of this Part provides further specification concerning activities and functions authorized as part of that mission. A. STRATEGIC INTELLIGENCE ANALYSIS The FBI is authorized to develop overviews and analyses of threats to and vulnerabilities of the United States and its interests in areas related to the FBI's responsibilities, including domestic and international criminal threats and activities; domestic and international activities, circumstances, and developments affecting the national security; and matters relevant to the conduct of the United States' foreign affairs. The overviews and analyses prepared under this Subpart may encompass present, emergent, and potential threats and vulnerabilities, their contexts and causes, and identification and analysis of means of responding to them. B. REPORTS AND ASSESSMENTS GENERALLY The FBI is authorized to conduct research, analyze information, and prepare reports and assessments concerning matters relevant to authorized FBI activities, such as reports and assessments concerning: types of criminals or criminal activities; organized crime groups; terrorism, espionage, or other threats to the national security; foreign intelligence matters; or the scope and nature of criminal activity in particular geographic areas or sectors of the economy. C. INTELLIGENCE SYSTEMS The FBI is authorized to operate intelligence, identification, tracking, and information 29 A-30 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide systems in support of authorized investigative activities, or for such other or additional purposes as may be legally authorized, such as intelligence and tracking systems relating to terrorists, gangs, or organized crime groups. 30 A-31 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide V. AUTHORIZED METHODS A. PARTICULAR METHODS All lawful investigative methods may be used in activities under these Guidelines as authorized bY.these Guidelines. Authorized methods include, but are not limited to, those identified in the following list. The methods identified in the list are in some instances subject to special restrictions or review or approval requirements as noted: 1. The methods described in Part Il.A.4 of these Guidelines. 2. Mail covers. 3. Physical searches of personal or real property where a warrant or court order is not legally required because there is no reasonable expectation of privacy (e.g., trash covers) . 4. Consensual monitoring of communications, including consensual computer monitoring, subject to legal review by the Chief Division Counsel or the FBI Office of the General Counsel. Where a sensitive monitoring circumstance is involved, the monitoring must be approved by the Criminal Division or, if the investigation concerns a threat to the national security or foreign intelligence , by the National Security Division. 5. Use of closed-circuit television, direction finders, and other monitoring devices, subject to legal review by the Chief Division Counsel or the FBI Office of the General Counsel. (The methods described in this paragraph usually do not require court orders or warrants unless they involve physical trespass or non-consensua l monitoring of communications, but legal review is necessary to ensure compliance with all applicable legal requirements.) 6. Polygraph examinations. 7. Undercover operations. In investigations relating to activities in violation of federal criminal law that do not concern threats to the national security or foreign intelligence, undercover operations must be carried out in conformity with the Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations. In investigations that are not subject to the preceding sentence because they concern threats to the national security or foreign intelligence, undercover operations involving religious or political organizations must be reviewed and approved by FBI Headquarters, with participation by the National Security Division in the review process. 8. Compulsory process as authorized by law, including grand jury subpoenas and 31 A-32 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide other subpoenas, National Security Letters (15 U.S.C. 1681u, 1681v; 18 U.S.C. 2709; 12 U.S.C. 3414(a)(5)(A); 50 U.S.C. 436), and Foreign Intelligence Surveillance Act orders for the production of tangible things (50 U.S.C. 1861-63). B. 9. Accessing stored wire and electronic communications and transactional records in conformity with chapter 121 of title 18, United States Code (18 U.S.C. 27012712). 10. Use of pen registers and trap and trace devices in conformity with chapter 206 of title 18, United States Code (18 U.S.C. 3121-3127), or the Foreign Intelligence Surveillance Act (50 U.S.C. 1841-1846). 11. Electronic surveillance in conformity with chapter 119 of title 18, United States Coq.e (18 U.S.C. 2510-2522), the Foreign Intelligence Surveillance Act, or Executive Order 12333 § 2.5. 12. Physical searches, including mail openings, in conformity with Rule 41 of the Federal Rules of Criminal Procedure, the Foreign Intelligence Surveillance Act, or Executive Order 12333 § 2.5. A classified directive provides additional limitation on certain searches. 13. Acquisition of foreign intelligence information in conformity with title VII of the Foreign Intelligence Surveillance Act. SPECIAL REQUIREMENTS Beyond the limitations noted in the' list above relating to particular investigative methods, the following requirements are to be observed: 1. Contacts with Represented Persons Contact with represented persons may implicate legal restrictions and affect the admissibility of resulting evidence. Hence, if an individual is known to be represented by counsel in a particular matter, the FBI will follow applicable law and Department procedure concerning contact with represented individuals in the absence of prior notice to counsel. The Special Agent in Charge and the United States Attorney or their designees shall consult periodically on applicable law and Department procedure. Where issues arise concerning the consistency of contacts with represented persons with applicable attorney conduct rules, the United States Attorney's Office should consult with the Professional Responsibility Advisory Office. 32 A-33 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers ion Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 2. Use of Classified Investigative Technologies fuappropriate use of classified investigative technologies may risk the compromise of such technologies. Hence, in an investigation relating to activities in violation of federal criminal law that does not concern a threat to the national security or foreign intelligence, the use of such technologies must be in conformity with the Procedures for the Use of Classified fuvestigative Technologies in Criminal Cases. C. OTHERWISE ILLEGAL ACTIVITY 1. Otherwise illegal activity by an FBI agent or employee in an undercover operation relating to activity in violation of federal criminal law that does not concern a threat to the national security or foreign intelligence must be approved in conformity with the Attorney General's Guidelines on Federal Bureau of fuvestigation Undercover Operations. Approval of otherwise illegal activity in conformity with those guidelines is sufficient and satisfies any approval requirement that would otherwise apply under these Guidelines. 2. Otherwise illegal activity by a human source must be approved in conformity with the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources. 3. Otherwise illegal activity by an FBI agent or employee that is not within the scope of paragraph 1. must be approved by a United States Attorney's Office or a Department of Justice Division, except that a Special Agent in Charge may authorize the following: a. otherwise illegal activity that would not be a felony under federal, state, local, or tribal law; b. consensual monitoring of communications, even if a crime under state, local, or tribal law; c. the controlled purchase, receipt, delivery, or sale of drugs, stolen property, or other contraband; d. the payment of bribes; e. the making of false representations in concealment of personal identity or the true ownership of a proprietary; and f. conducting a money laundering transaction or transactions involving an aggregate amount not exceeding $1 million. 33 A-34 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide However, in an investigation relating to a threat to the national security or foreign intelligence collection, a Special Agent in Charge may not authorize an activity that may constitute a violation of export control laws or laws that concern the proliferation of weapons of mass destruction. In such an investigation, a Special Agent in Charge may authorize an activity that may otherwise violate prohibitions of material support to terrorism only in accordance with standards established by the Director of the FBI and agreed to by the Assistant Attorney General for National Security. 4. The following activities may not be authorized: a. Acts of violence. b. Activities whose authorization is prohibited by law, including unlawful investigative methods, such as illegal electronic surveillance or illegal searches. Subparagraph a., however, does not limit the right of FBI agents or employees to engage in any lawful use of force, including the use of force in self-defense or defense of others or otherwise in the lawful discharge of their duties. 5. An agent or employee may engage in otherwise illegal activity that could be authorized under this Subpart without the authorization required by paragraph 3. if necessary to meet an immediate threat to the safety of persons or property or to the national security, or to prevent the compromise of an investigation or the loss of a significant investigative opportunity. In such a case, prior to engaging in the otherwise illegal activity, every effort should be made by the agent or employee to consult with the Special Agent in Charge, and by the Special Agent in Charge to consult with the United States Attorney's Office or appropriate Department of Justice Division where the authorization of that office or division would be required under paragraph 3 ., unless the circumstances preclude such consultation. Cases in which otherwise illegal activity occurs pursuant to this paragraph without the authorization required by paragraph 3. shall be reported as soon as possible to the Special Agent in Charge, and by the Special Agent in Charge to FBI Headquarters and to the United States Attorney's Office or appropriate Department of Justice Division. 6. In an investigation relating to a threat to the national security or foreign intelligence collection, the National Security Division is the approving component for otherwise illegal activity for which paragraph 3. requires approval beyond internal FBI approval. However, officials in other components may approve otherwise illegal activity in such investigations as authorized by the Assistant Attorney General for National Security. 34 A-35 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide VI. RETENTION AND SHARING OF INFORMATION A. RETENTION OF INFORMATION B. 1. The FBI shall retain records relating to activities under these Guidelines in accordance with a records retention plan approved by the National Archives and Records Administration. 2. The FBI shall maintain a database or records system that permits, with respec t to each predicated investigation, the prompt retrieval of the status of the investigation (open or closed), the dates of opening and closing, and the basis for the investigation. INFORMATION SHARING GENERALLY 1. Permissive Sharing Consistent with law and with any applicable agreements or understandings with other agencies concerning the dissemination ·of information they have provided , the FBI may disseminate information obtained or produced through activities under these Guidelines: a. within the FBI and to other components of the Department of Justice; b. to other federal, state, local, or tribal agencies if related to their responsibilities and, in relation to other Intelligence Community agencies , the determination whether the information is related to the recipient's responsibilities may be left to the recipient; c. to congressional committees as authorized by the Department of Justice Office of Legislative Affairs; d. to foreign agencies if the information is related to their responsibilities and the dissemination is consistent with the interests of the United States (including national security interests) and the FBI has considered the effect such dissemination may reasonably be expected to have on any identifiable United States person; e. if the information is publicly available, does not identify United States persons, or is disseminated with the consent of the person whom it concerns; f. if the dissemination is necessary to protect the safety or security of persons or property, to protect against or prevent a crime or threat to the national 35 A-36 UNC LASSIF IED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Domestic Investigations and Operations Guide security, or to obtain information for the conduct of an authorized FBI investigation; or g. 2. if dissemination of the information is otherwise permitted by the Privacy Act (5 U.S.C. 552a). Required Sharing The FBI shall share and disseminate information as required by statutes, treaties, Executive Orders, Presidential directives, National Security Council directives, Homeland Security Council directives, and Attorney General-approved policies, memoranda of understanding, or agreements. C. INFORMATION RELATING TO CRIMINAL MATTERS 1. Coordination with Prosecutors In an investigation relating to possible criminal activity in violation of federal law, the agent conducting the investigation shall maintain periodic written or oral contact with the appropriate federal prosecutor, as circumstances warrant and as requested by the prosecutor. When, during such an investigation, a matter appears arguably to warrant prosecution, the agent shall present the relevant facts to the appropriate federal prosecutor. Information on investigations that have been closed shall be available on request to a United States Attorney or his or her designee or an appropriate Department of Justice official. 2. Criminal Matters Outside FBI Jurisdiction When credible information is received by an FBI field office concerning serious criminal activity not within the FBI's investigative jurisdiction, the field office shall promptly transmit the information or refer the complainant to a law enforcement agency having jurisdiction, except where disclosure would jeopardize an ongoing investigation , endanger the safety of an individual, disclose the identity of a human source, interfere with a human source'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 to a law enforcement agency or agencies having jurisdiction, and full disclosure shall be made as soon as the need for restricting disclosure 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 periodic reports to the Deputy Attorney General on such nondisclosures and incomplete disclosures, in a form suitable to protect the identity of human sources . 36 A-37 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 3. D. Reporting of Criminal Activity a. When it appears that an FBI agent or employee has engaged in criminal activity in the course of an investigation under these Guidelines, the FBI shall notify the United States Attorney's Office or an appropriate Department of Justice Division. When it appears that a human source has engaged in criminal activity in the course of an investigation under these Guidelines, the FBI shall proceed as provided in the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources. When information concerning possible criminal activity by any other person appears in the course of an investigation under these Guidelines, the FBI shall initiate an investigation of the criminal activity if warranted, and shall proceed as provided in paragraph 1. or 2. b. The reporting requirements under this paragraph relating to criminal activity by FBI agents or employees or human sources do not apply to otherwise illegal activity that is authorized in conformity with these Guidelines or other Attorney General guidelines or to minor traffic offenses. INFORMATION RELATING TO NATIONAL SECURITY AND FOREIGN INTELLIGENCE MATTERS The general principle reflected in current laws and policies is that there is a responsibility to provide information as consistently and fully as possible to agencies with relevant responsibilities to protect the United States and its people from terrorism and other threats to the national security, except as limited by specific constraints on such sharing. The FBI's responsibilities in this area include carrying out the requirements of the Memorandum of Understanding Between the Intelligence Community, Federal Law Enforcement Agencies, and the Department of Homeland Security Concerning Information Sharing (March 4, 2003), or any successor memorandum of understanding or agreement. Specific requirements also exist for internal coordination and consultation with other Department of Justice components, and for provision of national security and foreign intelligence information to White House agencies, as provided in the ensuing paragraphs. 1. Department of Justice a. The National Security Division shall have access to all information obtained by the FBI through activities relating to threats to the national security or foreign intelligence. The Director of the FBI and the Assistant Attorney General for National Security shall consult concerning these activities whenever requested by either of them, and the FBI shall provide such reports and information concerning these activities as the Assistant 37 A-38 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide Attorney General for National Security may request. In addition to any reports or information the Assistant Attorney General for National Security may specially request under this subparagraph, the FBI shall provide annual reports to the National Security Division conGerning its foreign intelligence collection program, including information concerning the scope and nature of foreign intelligence collection activities in each . FBI field office. b. The FBI shall keep the National Security Division apprised of all information obtained through activities under these Guidelines that is necessary to the ability of the United States to investigate or protect against threats to the national security, which shall include regular consultations between the FBI and the National Security Division to exchange advice and information relevant to addressing such threats through criminal prosecution or other means. c. Subject to subparagraphs d. and e., relevant United States Attorneys' Offices shall have access to and shall receive information from the FBI relating to threats to the national security, and may engage in consultations with the FBI relating to such threats, to the same extent as the National Security Division. The relevant United States Attorneys' Offices shall receive such access and information from the FBI field offices. d. In a counterintelligence investigation - i.e., an investigation relating to a matter described in Part VII.S.2 of these Guidelines - the FBI's provision of information to and consultation with a United States Attorney's Office are subject to authorization by the National Security Division. In consultation with the Executive Office for United States Attorneys and the FBI, the National Security Division shall establish policies setting forth circumstances in which the FBI will consult with the National Security Division prior to informing relevant United States Attorneys' Offices about such an investigation. The policies established by the National Security Division under this subparagraph shall (among other things) provide that: i. the National Security Division will, within 30 days, authorize the FBI to share with the United States Attorneys' Offices information relating to certain espionage investigations, as defined by the policies, unless such information is withheld because of substantial national security considerations; and n. the FBI may consult freely with United States Attorneys' Offices concerning investigations within the scope of this subparagraph during an emergency, so long as the National Security Division is 38 A-39 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide notified of such consultation as soon as practical after the consultation. 2. e. Information shared with a United States Attorney's Office pursuant to subparagraph c. or d. shall be disclosed only to the United States Attorney or any Assistant United States Attorneys designated by the United States Attorney as points of contact to receive such information. The United States Attorneys and designated Assistant United States Attorneys shall have appropriate security clearances and shall receive training in the handling of classified information and information derived from the Foreign Intelligence Surveillance Act, including training concerning the secure handling and storage of such information and training concerning requirements and limitations relating to the use, retention, and dissemination of such information. f. The disclosure and sharing of information by the FBI under this paragraph is subject to any limitations required in orders issued by the Foreign Intelligence Surveillance Court, controls imposed by the originators of sensitive material, and restrictions established by the Attorney General or the Deputy Attorney General in particular cases. The disclosure and sharing of information by the FBI under this paragraph that may disclose the identity of human sources is governed by the relevant provisions of the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources. White House In order to carry out their responsibilities, the President, the Vice President, the Assistant to the President for National Security Affairs, the Assistant to the President for Homeland Security Affairs, the National Security Council and its staff, the Homeland Security Council and its staff, and other White House officials and offices require information from all federal agencies, including foreign intelligence, and information relating to international terrorism and other threats to the national security . The FBI accordingly may disseminate to the White House foreign intelligence and national security information obtained through activities under these Guidelines, subject to the following standards and procedures: a. Requests to the FBI for such information from the White House shall be made through the National Security Council staff or Homeland Security Council staff including, but not limited to, the National Security Council Legal and Intelligence Directorates and Office of Combating Terrorism, or through the President's Intelligence Advisory Board or the Counsel to the President. 39 A-40 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 201 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide b. Compromising information concerning domestic officials or political organizations, or information concerning activities of United States persons intended to affect the political process in the United States, may be disseminated to the White House only with the approval of the Attorney General, based on a determination that such dissemination is needed for foreign intelligence purposes, for the purpose of protecting against international terrorism or other threats to the national security, or for the conduct of foreign affairs. However, such approval is not required for dissemination to the White House of information concerning efforts of foreign intelligence services to penetrate the White House, or concerning contacts by White House personnel with foreign intelligence service personnel. c. Examples of types of information that are suitable for dissemination to the White House on a routine basis include, but are not limited to: 1. information concerning international terrorism; 11. information concerning activities of foreign intelligence services in the United States; m. information indicative of imminent hostilities involving any foreign power; 1v. information concerning potential cyber threats to the United States or its allies; v. information indicative of policy positions adopted by foreign officials, governments, or powers, or their reactions to United States foreign policy initiatives; v1. information relating to possible changes in leadership positions of foreign governments, parties, factions, or powers; v11. information concerning foreign economic or foreign political matters that might have national security ramifications; and v111. information set forth in regularly published national intelligence requirements. d. Communications by the FBI to the White House that relate to a national security matter and concern a litigation issue for a specific pending case must be made known to the Office of the Attorney General, the Office of 40 A-41 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide the Deputy Attorney General, or the Office of the Associate Attorney General. White House policy may specially limit or prescribe the White House personnel who may request information concerning such issues from the FBI. e. 3. The limitations on dissemination of information by the FBI to the White House under these Guidelines do not apply to dissemination to the White House of information acquired in the course of an FBI investigation requested by the White House into the background of a potential employee or appointee, or responses to requests from the White House under Executive Order 10450. Special Statutory Requirements a. Dissemination of information acquired under the Foreign Intelligence Surveillance Act is, to the extent provided in that Act, subject to minimization procedures and other requirements specified in that Act. b. Information obtained through the use of National Security Letters under 15 U.S.C. 1681v may be disseminated in conformity with the general standards of this Part. Information obtained through the use of National Security Letters under other statutes may be disseminated in conformity with the general standards of this Part, subject to any applicable limitations in their governing statutory provisions: 12 U.S.C. 3414(a)(5)(B); 15 U.S.C. 1681u(f); 18 U.S.C. 2709(d); 50 U.S.C. 436(e). 41 A-42 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide VII. DEFINITIONS A. CONSENSUAL MONITORING: monitoring of communications for which a court order or warrant is not legally required because of the consent of a party to the communication. B. EMPLOYEE: an FBI employee or an employee of another agency working under the direction and control of the FBI. C. FOR OR ON BEHALF OF A FOREIGN POWER: the determination that activities are for or on behalf of a foreign power shall be based on consideration of the extent to which the foreign power is involved in: 1. control or policy direction; 2. financial or material support; or 3. leadership, assignments, or discipline. D. FOREIGN COMPUTER INTRUSION: the use or attempted use of any cyber-activity or other means, by, for, or on behalf of a foreign power to scan, probe, or gain unauthorized access into one or more U.S.-based computers. E. FOREIGN INTELLIGENCE: information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists. F. FOREIGN INTELLIGENCE REQUIREMENTS: G. 1. national intelligence requirements issued pursuant to authorization by the Director of National Intelligence, including the National Intelligence Priorities Framework and the National HUMINT Collection Directives, or any successor directives thereto; 2. requests to collect foreign intelligence by the President or by Intelligence Community officials designated by the President; and 3. directions to collect foreign intelligence by the Attorney General, the Deputy Attorney General, or an official designated by the Attorney General. FOREIGN POWER: 1. a foreign government or any component thereof, whether or not recognized by the United States; 42 A-43 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations ancl Operations Guide 2. a faction of a foreign nation or nations, not substantially composed of United States persons; 3. an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; 4. a group engaged in international terrorism or activities in preparation therefor; 5. a foreign-based political organization, not substantially composed of United States persons; or 6. an entity that is directed or controlled by a foreign government or governments. H. HUMAN SOURCE: a Confidential Human Source as defined in the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources. I. INTELLIGENCE ACTIVITIES: any activity conducted for intelligence purposes or to affect political or governmental processes by, for, or on behalf of a foreign power. J. INTERNATIONAL TERRORISM: Activities that: 1. involve violent acts or acts dangerous to human life that violate federal, state, local, or tribal criminal law or would violate such law if committed within the United States or a state, local, or tribal jurisdiction; 2. appear to be intended: 3. K. 1. to intimidate or coerce a civilian population; 11. to influence the policy of a government by intimidation or coercion; or 111. to affect the conduct of a government by assassination or kidnapping; and occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear to be intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum. PROPRIETARY: a sole proprietorship, partnership, corporation, or other business entity operated on a commercial basis, which is owned, controlled, or operated wholly or in part on behalf of the FBI, and whose relationship with the FBI is concealed from third parties. 43 A-44 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide L. PUBLICLY AV AII.,ABLE: information that has been published or broadcast for public consumption, is available on request to the public, is accessible on-line or otherwise to the public, is available to the public by subscription or purchase, could be seen or heard by any casual observer, is made available at a meeting open to the public, or is obtained by visiting any place or attending any event that is open to the public. M. RECORDS: any records, databases, files, indices, information systems, or other retained information. N. SENSITIVE INVESTIGATIVE MATTER: an investigative matter involving the activities of a domestic public official or political candidate (involving corruption or a threat to the national security), religious or political organization or individual prominent in such an organization, or news media, or any other matter which, in the judgment of the official authorizing an investigation, should be brought to the attention of FBI Headquarters and other Department of Justice officials. 0. SENSITIVE MONITORING CIRCUMSTANCE: 1. investigation of a member of Congress, a federal judge, a member of the Executive Branch at Executive Level IV or above, or a person who has served in such capacity within the previous two years; 2. investigation of the Governor, Lieutenant Governor, or Attorney General of any state or territory, or a judge or justice of the highest court of any state or territory, concerning an offense involving bribery, conflict of interest, or extortion related to · the performance of official duties; 3. a party to the communication is in the custody of the Bureau of Prisons or the United States Marshals Service or is being or has been afforded protection in the Witness Security Program; or 4. the Attorney General, the Deputy Attorney General, or an Assistant Attorney General has requested that the FBI obtain prior approval for the use of consensual monitoring in a specific investigation. P. SPECIAL AGENT IN CHARGE: the Special Agent in Charge of an FBI field office (including an Acting Special Agent in Charge), except that the functions authorized for Special Agents in Charge by these Guidelines may also be exercised by the Assistant Director in Charge or by any Special Agent in Charge designated by the Assistant Director in Charge in an FBI field office headed by an Assistant Director, and by FBI Headquarters officials designated by the Director of the FBI. Q. SPECIAL EVENTS MANAGEMENT: planning and conduct of public events or activities whose character may make them attractive targets for terrorist attack. 44 A-45 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide R. STATE, LOCAL, OR TRIBAL: any state or territory of the United States or political subdivision thereof, the District of Columbia, or Indian tribe. S. THREAT TO THE NATIONAL SECURITY: 1. international terrorism; 2. espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers, organizations, or persons; 3. foreign computer intrusion; and 4. other matters determined by the Attorney General, consistent with Executive Order 12333 or a successor order. T. UNITED STATES: when used in a geographic sense, means all areas under the territorial sovereignty of the United States. U. UNITED STATES PERSON: Any of the following, but not including any association or corporation that is a foreign power as defined in Subpart G.1.-.3.: 1. an individual who is a United States citizen or an alien lawfully admitted for permanent residence; 2. an unincorporated association substantially composed of individuals who are United States persons; or 3. a corporation incorporated in the United States. In applying paragraph 2., if a group or organization in the United States that is affiliated with a foreign-based international organization operates directly under the control of the international organization and has no independent program or activities in the United States, the membership of the entire international organization shall be considered in determining whether it is substantially composed of United States persons. If, however, the U.S.-based group or organization has programs or activities separate from, or in addition to, those directed by the international organization, only its membership in the United States shall be considered in determining whether it is substantially composed of United States persons. A classified directive provides further guidance concerning the determination of United States person status. 45 A-46 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide v. USE: when used with respect to human sources, means obtaining information from, tasking, or otherwise operating such sources. Date: __ i_~~~_,_8_ 46 A-47 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide APPENDIX B: (U) EXECUTIVE ORDER 12333 B-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide EXECUTIVE ORDER 12333 UNITED STATES INTELLIGENCE ACTIVITIES DECEMBER 4 , 1981 (AS AMENDEDBY EXECUTIVE ORDERS 13284 (2003), 13355 AND 13470 (2008)) (2004) PREAMBLE Timely , accurate activities, , and insightful capabilities, plans powers , organizations, essential to reasonable United that the and States purpose and as for hereby of the the ordered PART 1 Goals, Respect to President as decisions , the with of States. ensure that in States . For me by the , amended , America United the of America 1947 , as of All possible vested of of , in States constitutional Duties (Act) order to intelligence rights , it States national and , and Responsibilities Intelligence States is the intelligence necessary agencies and the from shall shall , and information and interests effort Council development policies, with Efforts Security the concerning United United conduct National economic this States States , and this to United United The United departments the United , is follows: defense All authority foreign agents intelligence Act Directions, Council the protection United Goals . best Security the the the of their be used the of effective and Security of laws of must about intentions , and security receive National , and persons means the President activities the lawful and the provide 1.1 national , by virtue Constitution including and will information the Homeland on which conduct of protection foreign to foreign base , of security cooperate provide fully to threats . fulfill goal . (a) All order , and States intelligence means, with persons information consistent full with applicable consideration , shall to be used protect of the Federal rights to obtain reliable the United States law and of and its 1 8-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFI CIAL USE ONLY Domestic Investigati ons and Operation s Guide interests . (b) and The United shall under continue this United order States privacy guided emphasis legal freedoms obligation , activities rights , civil of all liberties , and law . under to President this order should to intelligence respond be . should Espionage and by foreign services against (e) (2) Threats from terrorism (3) Threats from the be given of other to the to detecting and United the to the States and its interests , possession of mass the of State in terrorism and destruction branch information viewpoints , and , or the production , responsive , that draw on all open standards to source , consider accurately represent views . , local , and tribal and defending threats to interests . Our national account the responsibilities governments to , including analytic other ; . reports rigorous securing , proliferation be given executive alternative (f) interests United insightful appropriate its interests , and analytic and its , accurate , meet States and shall information intelligence States development sources their activities United emphasis appropriate or and ; and weapons in threats powers Special decisionmakers tribal the information directed use and intelligence by Federal for a solemn : (1) partners fully , including by the Special countering diverse protect has of collection need set (d) conduct guaranteed by the timely , to Government the Intelligence priorities of in persons rights (c) States governments the the intelligence and and , as are United United from and should requirements appropriate States States effort critical of , private its take State into , local , sector 2 B-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ve rsion Dated : October 15, 2011 UN CLASS IFIED - FOR OFFICIAL USE ONLY Domestic Inves tigation s and Oper ations Guide entities , when information and (g) to prepare the full undertaking All intelligence and to law and (a) shall act as highest provides support to for , and direction to counterintelligence and programs Operations the a responsibility a manner executive for conduct review of all action Action and Other The NSC shall . consider and submit a periodic action cover t action activities effectiveness and to the proposals Director of , to other policies National intelligence shall oversee Intell i gence NSC , and direct Program and to as the to the policy President shall serve to as security of the National . the Director head of to the adviser Security implementation also the , the principal national shall operations Subject the , but The NSC shall . the of ongoing f unct i ons Homeland execution of may direct the of other . of related the review intelligence control , act , on each legal actions (Director) matters and covert President applicable President Intelligence , and the national such sensitive Community the the of Intelligence Intelligence President for for , direction National the conduct with perform as dissents current consistency action to an evaluation with The NSC shall covert u ndertake , including and . conduct consistency activities requirements of e, Intelligence and authority attendant Sensitive covert 1.3 intelligenc . proposed review that of , guidance , and all not entity foreign , including related (NSC) branch recommendation such allows with Council a policy of that . Security covert . . President , and Covert (b) Council of States , consistent guidance ranking the in dissemination United have information The National . the agencies of Security the protect presidential Purpose and intelligence exchange The National 1.2 and provide free collection to departments and applicable the Counc i l , and National Intelli g ence 3 B-4 UNC LASSIFIED - FOR OFFI CIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Dome stic Investigations and Operation s Guide Program and budget e f fective shall , in this section and of carrying as For section otherwise regardless , the Director of information pertains the the (2) Shall intelligence Community is in how the Intelligence accordance General with and , where guidelines and Terrorism or to all l . 5(a) of of this information or including United for , States how information by the of Intelligence this guidelines order by the be consistent 1016 Act of and , and shared developed be approved section , agency ; and may be used , shall Protection and 1.5(a) All to intelligence accessed shall under Government intelligence section pursuant Community President sharing the States section applicable issued of heads Agency . derived outside Community . this the section that which to or under function guidelines with information and the United develop accordance i bilities access in to Di rector Intelligence have , : or provided , the by the shall from one of the determine within , coordinated Intelligence access Act , to than of assigned source more views described hereby gathered to Director of of respons directed purpose Is the Central the 3(5) Reform the intelligence (1) a unified duti e s and and intelligence by the of by law , the information for the an element Director prohibited or out Except lead In addition , ta ke in t o account the . will effort. containing (a) order The Director intelligence departments and . of 2004 in Attorney with the (Public Intelligence Law 108 - 458) (IRTPA) . (b ) In addition responsibilities effective intelligence fulfilling p r escribed (1 ) guidance to for Shall the collection , of by the establish Intelligence obligations Act , the objectives Community , processing whatever the and Director : , priorities to , analysis nature and from ensure , and whatever , and timely and dissemination of source 4 B-5 UNCLA SSIFIED - FOR OFFICIAL USE ONL Y Ve rsion Dated : October 15, 201 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operati ons Gu ide de r ived ; (2) heads more May designate of departments or Intelligence services of Community Community efficiently the consultation Intelligence common concern if , in Director Community to develop on behalf of the such accomplished affected elements elements determines or effectively with and , one or to mainta in Intelligence services in can be more a consolidated manner ; (3) President covert Shall and action the oversee NSC with programs (4) arrangements governments and and Shall and with governments (C) Community , pol i cy , and (5) procedures drug Shall approved intelligence activities standards informat facilitating into and agreements intelligence are consistent Attorney (6) Shall abroad with establish managing i on , and products , with the to ; and and elements States of national ; of governing ensu r e that criminal these inte l ligence common security intelligence special agreements intelligence development General foreign and handling and among the United in i ng organizations objectives participate by the concern sy n chronize further foreign ; relationships to with policies and of and arrangements align conduct : international activities for and proposed foreign intelligence formulate and Shall with organizations foreign Intelligence the and organizations counterintelligence counterintelligence to ongoing and agreements international intelligence security all establishment arrangements (B) the to the May enter counterintelligence foreign to international (A) governments respect advice ; In regard intelligence and provide emp hasis programs and ; access systems , on : 5 B-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASS IFIED - FOR OFFICIAL USE ONL Y Domestic Investigation s and Operation s Guide (A) dissemination of assigning the preempting , and against the The fullest information highest priority the of Intelligence intelligence Shall have needed developed to activities to Shall from the for that an facilitates of the intelligence the Access of be governed this and Director and or (10) elements the of guidelines for of authority dissemination the head of all , both in its gathered , to head of a department that access to United States persons by the , except concerning of ; and information element all classified element when initially by procedures order heads the declassification Community information with information classified Community , and for: to form are ; intelligence-related the support , methods , establish Intelligence originally dissemination agencies elements of in Intelligence sources Classification or and programs , and ensure intelligence-related and form that and analysis; , after and authority intelligence Community standards the consultation and a department 2 of ; and receive Shall (B) Part allies and disclosure Community intelligence shall activities departments unauthorized (A) or , appropriate , intelligence departments Intelligence final , among elements intelligence protect protect (9) of of enterprise that independent (8) under and , and information ensure access to perform affected threats and Community ; (7) agencies to , preventing interests sharing access practicable detecting The establishment information sharing to , its prompt intelligence terrorist States (B) interoperable and disrupting United and most developed in include accordance and with ; May , only , and with after respect consultation to Intelligence with the head of the 6 8-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver sion Dated: October 15, 201 1 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Domestic Investigations and Operations Guide originating Intelligence originating department declassification sources delegate National this , methods national to head the the intelligence relating activities the of . Principal to The Director Deputy may Director of , operate centers to , and direct address intelligence Functional Managers one or more ; Managers United , and May establish designate States to officers serve in (A) Director concerning Managers related to ensure and dissemination of or activities intelligence Agency is discipline or and and the elements standards and Managers of with ; policies gaps ; processing architectures of related may also resources; by the The Director of intelligence and ; technical set tradecraft across management designated Director the Functional and ; and . National Manager for signals ; (ii) Intelligence activities determined (i) Security for capabilities intelligence Functional procedures Functional ; collection as the , and training the duties to implementing activities. on: their report and Community Director issues of the developing within and procedures other shall Intelligence non-intelligence the Managers and Mission with ; set coordination disciplines . incelligence activities of positions execution , policies a specific intelligence advise Functional the guidance or employees these , and may be charged strategic human or May establish (12) and the ; intelligence priorities or , or direct , and authority Intelligence (11) element , declassify of , information intelligence only Community Agency intelligence is The Director designated the of the Functional Central Manager for ; and (iii) The Director of the National 7 B-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FO R OFFI CIAL USE ONLY Domestic Investigations and Operations Gu ide Ge ospatial Manager - Intelligence for Agency geospatial related issues Mission advisors to or countries Shall of critical foreign Defense concerning Intelligence shall serve as principal specified aspects of , regions , topics , or uniform criteria relative production intelligence functional the intelligence production Community , in elements obtaining the transmission the of Secretary requirements of of of the such the intelligence authority with from Director dissemination data of the analytic tasks the Intelligence the Intelligence leaders . on of by the Director , or the timely that the appropriate to include the , as composed groups shall Intelligence other executive appropriate exploitation by national purpose Community Advisory elements offices the committees from , and for , to Community to by the Intelligence management ensure produced groups executive gathered i mmediately ( 17) heads advisory ensure means , and military within for ; , agencies Shall of levy ' s responsibilities designated (16) to the within representatives departments responsibility organizations Intelligence disseminated advise ultimate of and Community collection the transmission May establish Community , as including have concerned advice Intelligence of the consultation (15) branch for dissemination Community senior , and communications Shall Intelligence out for for ; and Community priorities intelligence (14) consist establish Community communications of Functional ; determination carry the . Managers on all designated ( 1 3) of designated intelligence (B) substantive is ; and intelligence resulting intelligence government elements is , commands; Shall determine requirements and priorities 8 B-9 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers ion Dated : October 15, 20 11 UNCLASSIFIED - FOR O FFICIAL USE ONL Y Domestic Investi gation s and Operations Guide for , and manage and production dissemination , and elements of the requirements in collect Defense and and in the President collection tasking by the approving of or conflicts national elements (except when the Secretary authority Secretary by resolving tasking Community by the approved and , of under Defense plans and the ; collection May provide and national are analysis of intelligence agenc i es , and that , analysis intelligence analysis Intelligence exercises (18) to and directed arrangements Director) of , collection Community , including collection i on assets tasking of , national requirements when otherwise of the Intelligence for collection direct not advisory information or national security or establishments elements tasking of the of the intelligence United Intelligence concerning to relevant departments States , Government Community ; and shall establish procedures , in departm e nts or General , to implement the agencies responsiveness agencies , and section States inside or all with persons outside (20) procedures and , the intelligence the United ensure activities Program In accordance (A) with Attorney or evaluate departments responsibilities this order information States , in , consistent of the is to with rights , through appropriate , coordination be collected , and policies and integration of by an Intelligence by the National Inte l ligence these policies and The Director of ; conducted funded monitor of ; consideration , whether deconfliction eleme n t or of to heads by the Government the full Shall Community . (18) affected approval and States fulfill and to authority establishments (17) with subject United Shall law United this other l . 3(b) app l icable and of (19 ) consultation of the Federal procedures Bureau : of 9 B-10 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLAS SIFIED - FOR OFFICIAL USE ONLY Domesti c Investigat ions and Operations Guide Investigation f oreign shall intelligence human - enabled the coordinate United collected means States and shall enabled United The Director the collected means and States of clandestine United States General ; and All of shall be subject and All Shall and , coordinate conducted by an Intelligence that involve ensure foreign through human- activities outside procedures for the containing to of Attorney and procedures synchronize heads of ; seek element the use the with policy activities funded by the activities , security clandestine the heads Intelligence National from to ; system advice of of Government coordination by the heads procedures or and States major the intelligence involve under affected intelligence intelligence of the developed elements establishments govern foreign the Community part Shall the approval joint elements in majority that the , establish , in the the with United the inside agencies , and Shall and of that , agencies (23) to or concurrence by other procedures or of the foreign activities (22) whole Intelligence intelligence Program , with conducted develop sources Community , and Intelligence departments policies , with deconflict , or to be coordinated departments departments Central activities foreign Intelligence (21) methods, through inside collection and counterintelligence shall departments services or activities the human policies collection section activities of counterintelligence (D) National sources of ; coordination affected human clandestine through (C) this through collection counterintelligence coordinate intelligence clandestine ; (B) Agency the of Community , acquisitions funded Intelligence Program ; the implications Secretary of in State of proposed 10 B-11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ve rsion Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigati ons and Operat ions Guide i ntelligence activities through appropriate activities are of Community conducted Act and other in United States (24) Shall o r der States of Government Agency . the Director in and responsibilities Intelligence related to elements of department the whose action of of IRTPA or attent the i on of resolution the in sta t utory that for the Secu r ity Agency , the to Director and Agency , the Under Inte l ligence and the Secretary Analysis heads the does of not the concurrence of Director the National of , the Assistant the or of section issue to 101 8 the for abrogate head of of National Geospatial Homeland of the . . obtain the any d e partments or bureau the ce by the President positions of : intelligen that department Director of the make the a directive bring NSC, o r the certain selection Of f ice , the , and an e l ement and by ' s authorities requirements respects taken implemented shall the Central actions e s that the of recommendations or providing contains , the The relevant Director in be the of the Di rector effective subsection Appointments in , coordinate violates a manner (1) the manner . Community , provided Director on of Intelligence departments and shall responsibilities (d) provide this of and who believ Dir ector gence the statutory issued department Community , directi authorities of integrate Intelligence head Inte ll igence of security with a secure Director i ves more intelli of the heads exercise national in of the Direct Community to the the use abrogate or , that consistent the the ensure ; and ' s exercise not shall and presidential Congress shall Intelligence law facilitate The Director this a manner to by the , and procedures Missions responsibilities United and pursuant products (c) considered p o licies responsibilities Chiefs are the shall the National Reconnaissance - Intelligence Security Secretary for of State for 11 B-12 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide Intelligence and Research Intelligence and Counterintelligence Energy , the the Department Director of Assistant of for the Investigation If the the the of department the or department the Director do not The relevant department Defense of any Defense of the for the Army , the above the rank Commandant Assistant (e) of Attorney Removal (1) from Except the certain positions for the the , the removal National , as Security the for Intelligence and Analysis of of the for the Admiral the Marine Intelligence ; and Security. . the Central Director may recommend to the Director of the Director Secretary , the Under ; the recommendation Director to intelligence department may be , of : Under Director relevant Agency , the Agency , the the Rear of the the , or Agency , the Geospatial-Intelligence Intelligence and removal case Director with a vacancy : National removal Director on the Guard for Agency , whose consult Coast consult Force , and or General Intelligence President General . be nominated heads Air and directly fill positions uniformed of Major to the Navy , the an Director shall an individual Intelligence; of Assistant head or may be . reach concurrence following Agency; vacancy President an individual President Bureau the case , the the withhold appointing Intelligence elements for may advise the the recommendation (2) in fill and to the in , as ' s intention to concur may not of Assistant Federal President or Analysis the the concerned before of not of and to selection a vacancy shall head of Department Executive does Director Secretary the the Director the head recommending Corps , and If head Director fill Treasury Office Intelligence Branch department the for the the Security , the on the of of Secretary recommendation agreement Director National . recommendation make the , the of Assistant the of to head President the National of the Homeland Secretary Defense Security of State 12 B-13 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide for Intelligence and Research Intelligence and Analysis the and the Director recommendation the for President (2) bureau head Assistant Bureau Intelligence of and Energy , the the of the Assistant Commandant and the Secretary Under respect to the head Director; individual if the advise the President retain the individual. to the for the . of Navy , the limit nominate or otherwise of recommendation Federal Force , and a recommendation Nothing , appoint assignment 1.4 the . for the not With request to of remove head Defense the retention the may to Secretary of of may recommend of intelligence the elements Marine removal , head , the Under the , of Corps , the to the Secretary . (3) to Air or of of head ' s intention the of Intelligence department Secretary heads Office Office for chooses of removal uniformed may make Defense the the Department upon the case , the the Intelligence department In the either For Army , the Director the Intelligence President individual of or to or of by a department head Director , or Executive of the individual department the Branch Guard for appointed the of : Reconnaissance Coast the If on removal department Director of Defense may remove , either Defense , the the . . Security National of an individual department removal National of for Treasury agree relevant Counterintelligence Director the individual the Investigation of do not the on the the Secretary may make a recommendation of and consult Assistant Department head removal for the , either The Director shall the department the Director Federal of removal for , and any with subsection the , or individual , or and this affect , assign The Intelligence law in shall authority terminate , with or of the be construed the President appointment without to or a consultation , concurrence. Community. the other Consistent provisions of with applicable this order , and 13 B- 14 UNCLASS IFIED - FOR OFFICIAL USE ONLY Vers ion Dated: October 15, 2011 UNCLASSIFIED - FO R OFFICIAL USE ONLY Domestic Investigations and Operation s Guide under and the leadership this order (a) , the the performance , the of (b) Joint Chiefs , and other executive information protect against weapons of mass against the States Conduct activities performance of similar are President activities , to proliferation of activities activities the United directed criminal drug directed against , persons the , and for systems and the in and the provision , and abroad , to accordance of services support for providing Community , and to other include with relating ; necessary Intelligence , development devices intelligence , technical activities Director research or disseminate States authorized Conduct this order ; procurement authorized of as of functions common concern for Community ; Protect the , information security of associations intelligence , installations means , including , employees necessary , and administrative by the by appropriate applicants ; powers , organizations , produce of Intelligence activities and , as by the conduct , international common concern and missions (f) set terrorism, hostile military States , intelligence States within designated the , and , the ; (d) technical concerning by foreign Analyze (e) officials priorities other (c) services branch United , the Council senior law by the functions Staff, with destruction , and agents Security , international United activities Homeland such : needed executive the in shall of of of In accordance collect the NSC, the Congress specified information the , the , as Community and , in appropriate their Intelligence provide commanders United Director and President Chairman the Collect President Vice of with the , property such , contractors related , and investigations , and Intelligence other persons Community employees of with elements as ; 14 B-15 UNCLASS IFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 20 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigation s and Operations Guide (g) Take governments needs (h) and (i) and agencies required to include by the . intelligence accordance with duties related to may direct. the Heads The heads the access of of of Executive all of the other departments information or Director appropriate General that and otherwise ' s duties , management excluded President by law , by the acting under this order ; programmatic the all security information the all to national Attorney Coordinate intelligence and Director in development systems operational and systems , and national and budgetary information developing other the (d) National other legal law , subject to inconsistent with support , to the the the and requirements the maximum mission Director of their , departments , all to respond applicable , information ; extent permitted of appropriations the department as appropriate Director guidelines availability the to of with security of and , as requirements and Provide implementation architectures elements sharing , and and architectures intelligence information further ; Program; (c) agencies and of and support Intelligence security ; and performance such Provide to in President Director to the direction necessary privacy the , except (b) the all ' : administrative , or integrate functions and Agencies shall for information the as entities homeland gathering order other relevant is to such Provide President this tribal sector and , and and Responsibilities intelligence at of Departments (a) national information (20) , and , private to activities Duties , local , coordinate Perform intelligence Branch relating other l . 3(b) State appropriate Deconflict activities section account ' and , as information 1.5 into the Director by and or not agency, may request such , 15 B-16 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domesti c Investigations and Operations Guide after consultation for the performance (e) under head (f) to the of of this with responding comply with the provisions performing foreign the agency , Director the or within greatest agency Part ; department 2 of affiliation and extent established the of Community intelligence or policies department elements Intelligence to applicable all of from order that regardless department ' s functions; tasking Ensure agency the Director advisory accordance of head the l . 3(b) (18) , in by the the of Respond section possible or with this order, , when counterintelligence functions; (g) Deconflict intelligence and activities intelligence section (h) of (21) Inform the in and l.3(b) through , coordinate of the Federal clandestine department and either directly United States foreign coordinated (j) through of or his f o reign of the or , as Bureau of Central the with the Central Inform the Secretary intelligence United the Agency , the collection of sources States that or has through not been Agency ; and Defense appropriate , of clandestine United States the the outside human Intelligence of Central of outside head , inform serving clandestine through not Intelligence designee , of States by the Director his Director Investigation; by the the the United approved outside , as of or and of collected designee the developed the appropriate means , and intelligence inside through with directly Director Director l . 3(b) (20) , accordance Investigation arrangements and section , either foreign and all ; General of agency intelligence human-enabled in Federal to Agency Director activities Attorney the Pursuant Intelligence with activities with integrate accordance order collection coordinated the this Bureau counterintelligence (i) other , and , either directly or collection in a region of 16 B-17 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide combat or Secretary contingency military of Defense, for with Director consultation 1.6 of Heads of of (a) Provide is required to include for except Report Federal criminal upon with as (c) with of such 13462 of under of by the this order violations specified Federal in procedures the head intelligence of in the a manner sources and procedures; Intelligence reports Protect Oversight of February to the their or 29, contrary Board, 2008, Director, elements intelligence activities with to and consistent provide concerning that they executive and Disseminate the any have reason order or disclosure the by law sector sources, in Director; appropriate, directed private intelligence unauthorized from as as and from guidance Facilitate, tribal, (f) the by law, concerned, of those duties, directive; intelligence, local, to and otherwise management as provided General and that possible and establishment in or acting General protection information excluded person may be unlawful accordance or or activities and (e) other all appropriate by employees Attorney Order all presidential methods, Attorney Report believe (d) the specified intelligence to to the Executive copies President; The heads shall: Director's General the agency, consistent methods, Attorney by any the information laws Community. security other of by the department, of after Intelligence. to national and such criminal laws agreed the by the paragraph, National access performance or by the (b) of the this Community Director to designated Intelligence Intelligence the direction of of the administrative President, the the purposes of relevant information, at Elements elements intelligence the operations or the sharing of President, information to State, entities; information or intelligence to foreign 17 B-18 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domest ic Investigations and Operations Guide governments or and counterintelligence accordance with (g) by the of international arrangements section or intelligence production (h) that or the for respective or and from have domestic in ; of procedures they inspectors responsible their order established approved dissemination criminal drug intelligence criminal drug ; and officials information intelligence general for , general privacy or organizations necessary to counsels civil have perform , liberties access their to any official . 1.7 Intelligence Community Intelligence responsibilities specified by law Community elements information and of foreign Ensure this production if intelligence agreements resulting abroad trafficking protection the governing and agency of under development intelligence for or (4) the activities responsibilities duties in General information and l.3(b) Participate Attorney organizations departments specified below , in addition in order or elsewhere within duties of to operate Intelligence Agency Collect , produce , and shall shall serve respective as part in those Intelligence . their of and departments needs shall the this executive intelligence also have element law of or THE CENTRAL INTELLIGENCE AGENCY. (1) analyze Each shall Community , as provided (a) Central . Community and Intelligence Elements the heads an integrated this order. The Director of the : (including through disseminate clandestine foreign means), intelligence and activities without counterintelligence; (2) assuming the United or performing States (3) activities Conduct counterintelligence any internal security functions within ; Conduct within and administrative outside the and United technical States support as necessary for 18 B-19 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLAS SIFIED - FOR OFFI CIAL USE ONLY Domestic Inves tigations and Ope rations Guide cover and proprietary (4) President . Conduct Ar med Forces the Congress of or to Resolution , Public the (5) relat i onships section and Conduct foreign coordinate Under the direction with o f f oreign governments (7) to inte l ligence (b) Defense as the Intelligence , produce , and counter i ntelligence another I agency is liaison guidance (4) of of this of foreign with intelligence other elements or of security organizations; functions and may direct shall o r, the services and duties related . The Director of the : through clandestine disseminate foreign intelligence support Direct and intelligence international the order, (including to the action services between Director Collect analyze missions the Agency covert consistent and of such from by ; THE DEFENSE INTELLIGENCE AGENCY. (1) national and , produce , or , through means) , and departmental ; (2) and or Perform that security relationships and declared War Powers any i gence 1.3(b) implementation (o r ; section Community the organizations order the l i g ence or this counterintelligence Intel intell of of war objective intelligence i n accordance with by the Agency by a report determines international (6) time may conduct a particular (4) in consistent approved Intelligence covered achieve or 1.3(b) Central period President with governments any activities States Law 93 - 148) the to the United Congress unless l ikely the ; action except during President more covert No agency the activity arrangements Collect coordination , provide intelligence for the Joint of Staff Chiefs comp onents , analyze , and defense Secretary of , combatant non - Defense and defense Defense agencies - related , the commanders tasking Chairman , other of the Defense ; 19 B-20 UNCLASS IFIED - FO R OFFICIAL USE ONLY Vers ion Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investiga tions and Operations Guide (3) Conduct counterintelligence (4) Conduct administrative activities cover within foreign and defense services foreign accordance with this order defense , and for liaison programs or l.7(a) with security international (4), coordinate organizations (6), and l.lO(i) of all matters related to the ; and foreign staff intelligence support as and directed THE NATIONAL SECURITY AGENCY. Security Agency and by the Secretary (including , and data foreign for purposes The Director of the : , produce counterintelligence departmental shall Collect , analyze through clandestine disseminate signals intelligence to means), support intelligence and national and missions; (2) organization Establish for delegation of conducted and signals operate other activities except of Defense (3) Control processing activities appropriate agent over elements department , after or for such of the agency pursuant and the that in signals a delegation with the tasks of as by the Director collection assignment periods operations may engage to for Intelligence intelligence , including , except certain coordination signals unified activities control No other intelligence an effective intelligence operational through Community. Secretary necessary . information are as exchange , intelligence l.3(b) and Provide (1) process States support intelligence intelligence sections counterintelligence National technical ; defense governments system (7) (c) foreign Manage Attache Defense United ; ; (6) Defense the establishments of and arrangements Conduct relationships of outside and proprietary (5) in and activities resources required ; and to for an the 20 B-21 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Domestic Investigation s and Operations Guide direct support of military (4) activities cover Conduct within (5) and Provide as Act as to the its transmission , handling communications under Agency , and for States of , and security with of the the with and the policy of as necessary for conduct Defense for nat i onal of military within Director of supervisory cryptologic l.3(b) (4) , l.7(a) THE NATIONAL RECONNAISSANCE OFFICE . acquisition , launch and Office for data intelligence and information departmental missions shall research , deployment related inte l ligence among the National Secu r ity to ensure to other (6) , and l.lO( The Director development operation facilities support United relationships i ) of of : and , and processing and the liaison (d) Be responsible of , security control . (1) r; ; and foreign Reconnaissance Directo 102A(g) and the capac i ty the signals order National to , including of Secur i ty this operations material sections in section distribution necessary National and with practices the for , and authorized regulations Conduct accordance systems suppo r t support Manager , consistent control (8) law operating exercise compliance the and National field covering this United intelligence Secretary Prescribe Act , within elements the in regulations in signals established (7) and technical ; be responsible the the requirements (6) Systems outside and ; departmental operations ; administrative and arrangements commanders of overhead to collect national States , and Government needs ; and (2) to the l.7(a) above Conduct missions (6) , and l.lO(i) foreign , in of liaison relationships accordance this order with sections relating l . 3 (b) (4) , . 21 B-22 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers ion Dated : October 15, 201 1 UNCLASSIFIED - FOR OFF ICIAL USE ONLY Domestic Investigat ions and Operati ons Guide ' THE NATIONAL GEOSPATIAL- INTELLIGENCE AGENCY. (e) Director of the National (1) disseminate foreign Collect and military operations (f) and intelligence administrative outside the , in the foreign and for and technical United the States geospatial accordance this the order with for conduct of support as necessary for intelligence sections 1 . 3(b) liaison (4) , 1 . 7(a) (6) , . intelligence Army , Navy , Air (1) management se l ected international shall disseminate defense and to appropriate , national (3) Monitor the tactical development intelligence research , development departmental activities and test ; ; , procurement , and - related requirements systems of means) , defense support and : clandestine counterintelligence , and equipment and and evaluation ; and (4) relationships Corps through Conduct of elements (including (2) related ac t ivities Marine counterintelligence , and , as The Commanders counterintelligence Force , and , and and requirements and Collect , analyze intelligence conduct support THE INTELLIGENCE AND COUNTERINTELLIGENCE ELEMENTS OF of produce for to support THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS . heads data ; and Conduct of , and purposes requirements and arrangements 1 . lO(i) : ; within relationships shall ; geospatial Conduct (4) , produce counterintelligence departmental (3) Agency information missions Provide and activities and departmental national , analyze intelligence intelligence (2) and , process geospatial national cover Geospatial-Intelligence The Conduct military and military cooperative foreign organizations intelligence intelligence defense in liaison exchange establishments accordance programs with and with 22 B-23 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Version Dated : October 15, 2011 UNCLASS IFIED - FOR OFFI CIAL USE ONLY Domes tic Investigations and Ope rations Guide sections l.3(b) (g) (4) , l.7(a) Under and such pursuant establish to , the Investigation shall , and General (h) the Attorney Attorney . the General General Federal may Bureau clandestine disseminate foreign intelligence support national with , after of foreign liaison and with l.7(a) of by Director ; ; and and of intelligence foreign accordance (6) the with services in approved activities relationships organizations and departmental intelligence enforcement means) , guidelines consultation Conduct (4) and procedural (3) l.3(b) , governments or with this order . THE INTELLIGENCE AND COUNTERINTELLIGENCE ELEMENTS OF THE COAST GUARD. (1) The Commandant Collect , produce , and counterintelligence information management activities foreign intelligence defense to and support defense shall : means) , and - related national and ; counterintelligence (3) Monitor the tactical development intelligence research activities ; , procurement systems , development , and and test , and equipment and and evaluation ; and (4) relationships Guard disseminate Conduct related Coast clandestine (2) of the through intelligence missions of (including including and departmental intelligence order through counterintelligence law the of Conduct international sections as (2) , and conduct this (including to counterintelligence security of elements accordance Attorney analyze of : counterintelligence , in supervision regulations Collect , produce missions the intelligence (1) the l.lO(i) INTELLIGENCE ELEMENTS OF THE FEDERAL BUREAU OF INVESTIGATION . analyze (6) , and Conduct and foreign intelligence services , security intelligence exchange services liaison programs or with foreign international 23 B-24 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Version Dated: October 15, 201 1 UNCLASSIFIED - FOR O FFICIAL USE ONLY Domest ic Investigations and Operations Guide organizations in accordance and , when operating l . lO (i) of (i) this as with part of sections the 1.3 (b) (4) , 1. 7 (a) (6) , Department of Defense , order. THE BUREAU OF INTELLIGENCE AND RESEARCH, DEPARTMENT OF STATE; THE OFFICE OF INTELLIGENCE AND ANALYSIS , DEPARTMENT OF THE TREASURY; THE OFFICE OF NATIONAL SECURITY INTELLIGENCE , DRUG ENFORCEMENT ADMINISTRATION ; THE OFFICE OF INTELLIGENCE AND ANALYSIS , DEPARTMENT OF HOMELANDSECURITY ; AND THE OFFICE OF INTELLIGENCE AND COUNTERINTELLIGENCE, DEPARTMENT OF ENERGY. The heads of State of the Drug of the ; the Office Treasury shall and of of and National ; the Homeland Research Analysis Security Counterintelligence , Department Security Office , Department Intelligence of , Intelligence ; and the , Department and Office of of Energy : sources) Collect , analyze intelligence information (j) of to available information support , national and ; and and participate with order in foreign accordance this pub l icly with analytic partners sections and or international l.3(b) (4 ) and . THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE . The Director available shall sources) information collect , analyze , intelligence missions Intelligence to counterintelligence Conduct in through disseminate exchanges organizations or , and missions (2) 1. 7 (a) (6) (overtly , produce , and departmental 1.8 and Intelligence Administration (1) and Intelligence Office , Department Intelligence of of ; the Enforcement Analysis the Bureau support of the The Department or , produce , and , and Office , including other (overtly the of of State the Director missions . publicly disseminate counterintelligence National national through to support of National Counterterrorism Center , . In addition to the authorities 24 B-25 UNCLAS SIFIED - FOR OFFICIAL USE ONL Y Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide exercised by the sections 1.4 Bureau of Intelligence l.7(i) of this and and order, the Research under Secretary of State shall: (a) sources) and Collect information national (b) received security from the to United Transmit Support discharging their of this Chiefs diplomatic foreign policy to possible, and requirements the of United reports consular and Chiefs States responsibilities of Department posts; advisory of taskings United Missions pursuant order the or through Treasury. States to in law the Treasury of foreign of publicly and, economic The Department of In addition Office Secretary information State, the by the of financial 1.10 States maximum extent Community exercised (overtly United available and direction. authorities the the States The Department of publicly and (d) 1.9 to reporting abroad; presidential through concerns; Intelligence Missions or relevant Disseminate, (c) of (overtly of Intelligence under the Treasury 1.4 shall sources) consultation the and sections available in to Analysis and 1.7(i) collect foreign with the Department information. Defense. The Secretary of Defense shall: (a) analyze, Collect produce, and be responsive the Director; (b) analyze, produce, intelligence of the Collect and Secretary's (c) Conduct (including and to disseminate collection (including and through clandestine information tasking through means), and and advisory clandestine disseminate defense counterintelligence, as intelligence and tasking by means), defense-related required for execution responsibilities; programs and missions necessary to fulfill 25 8-26 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigati ons and Operat ions Guide national , departmental (d) Conduct o f Department counter , and of Defense Act , in e x e cutive agent i ntelligence the Pr ovide i ntelligence States (g ) Carry a u thorized the out Pr otect i n stallations or technical the of signals critical , within for research systems and the , development devices of Department , relating , employees , contractors with the of to Defense , property means , including Establish and wi th cooperative selected i nte l ligence or i nternational such , and Department maintain defense , and investigations other of foreign security are in persons Defense with as are accordance (j) Conduct such i ties within and functions the cover described Intelligence of with this and the proprietary in sections Community , governments that such sections order programs establishments foreign ensure administrative outside exchange of , and 1. 7 (a) (6) for intelligence defense services 1. 3 (b ) (21 ) and t o provide defense intelligence organizations p r ograms s u pport the for transmission , information and the Government Director security rel a t ionships activ Director ; (i ) and , as ; functions; associations necessary the contract by appropriate o f applicants with with ; , activities e mployees order by the intelligence (h) this timely defined of support coordinate accordance States in ; ; Government a n d procurement s imil ar United for , as of coordination of and in (21) activities (f) United and requirements activities components activities 1.3 (b ) (20) (e ) intelligence counterintelligence i n t elligence section tactical , and relationships 1 . 3 (b) ( 4) , ; and United technical States support as arrangements (a) though elements of are , to necessary perform (i) above , and to the Department of 26 B-27 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 201 1 - UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide Defense; and (k) Use the Department and, of of when the Intelligence Defense Coast above to responsibilities agencies, or 1.11 to is in section operating l .7(i) within l.7(b) as part the through of the conduct, this through determine being order the used United States, the authorized President, other (f) Department officials . through such to Security and except , and procedures Attorney The Department exercised the by the Office Department order , the (a) Provide research of of expert capabilities Community , as under other shall activities to equipment of President, the and, Security and the and Security or United the States intentionally against use activities shall by the Secretary Intelligence of 1.4 President In addition Energy scientific to the to of such be conducted of Homeland . Energy. Energy Secretary Vice protect upon General of the be acquired those agreed sections surveillance Homeland to . and Analysis Service, protectees shall Defense Homeland of of of Service activities the or Secretary equipment pursuant capability as and Intelligence Secret Office No information surveillance 1.12 States departments, Defense, of under of 's In addition of Secretary President Secret of missions Security Executive by the Department Office and the other Security. United against or Homeland Homeland existence section Secretary , the the Defense the by the of of intelligence to of Secretary this the the exercised of in conduct Department the within The Department the out assigned authorities this carry offices responsibilities of Guard assigned appropriate, as identified elements Defense, (h) of Community to and sections the authorities Counterintelligence 1 . 4 and l . 7(i) of shall: , technical, agencies within analytic, the and Intelligence appropriate; 27 B-28 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigation s and Operations Guide (b) Participate analysis in requirements Department can (c) 1.13 contribute Federal Bureau Bureau of sections special the with exercised intelligence collection expert capability Department respect of of l.7(g) of elements the this order General and regulations as the Attorney General may establish Bureau , within intelligence section to law 1 . 3 (b) (20) 2 . 1 Need . of , national of such information in a vigorous with respectful of founded 2.2 technical as well terrorist , plans , and , and foreign Order Director technical , to foreign , consistent with , as may be necessary . , and information intentions their the areas responsible and upon applicable which . the national Collection will manner foreign , is of relations and about of agents objective Constitution This such , the States insightful a priority principles the be pursued that law United is and States was . Purpose. abroad , and in the the Activities decisionmaking is to the Justice provide missions , and defense the order departmental , innovative consistent this , and persons informed security services of , capabilities to shall to under pursuant United Intelligence powers , organizations essential (21) Timely , accurate activities the enforcement or Conduct Investigation outside and national PART 2 the or and support of matters. of and Attorney assistance the overtly of Department the Federal in energy of the of In addition intelligence Investigation State foreign Investigation. by the 1 . 4 and to of supervision of and ; and information authorities the with The Federal under where Participate collecting formulating collection , and as the the is techniques acquisition detection activities intended , the enhance , especially of and to significant countering spread those of human undertaken foreign of and intelligence , international weapons of mass destruction , 28 B-29 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide and espionage certain general with the laws, criminal are apply in of to essential or in interfere law enforcement forth to achieve and the this with responsibility of balance protection shall be authorized any are consistent and Order any below proper information Nothing to Set addition intended interests. to powers. that, acquisition individual construed by foreign principles applicable between of conducted civil department or or agency. 2.3 Collection Community of are information with information. authorized to concerning procedures established element containing such element consistent with the after shall permit following with concerned (a) Information the consent (b) Information the obtainable Investigation sought, such information persons only of head in accordance the Intelligence of a department Attorney by Part and publicly person General, 1 of Those this procedures dissemination of the or, foreign that foreign or concerning Collection intelligence by the elements no foreign the intelligence organizations. may be undertaken concerning collected information not Federal when significant authorized or concerned; commercial of available such be undertaken provided elements the is States (FBI) Community, disseminate Director. retention, other by other or by the the including shall retain, provided constituting United Intelligence head approved with that of or of information: counterintelligence, within and authorities of the or by the collection, types States by the consultation corporations collect, United Community Order, Elements Bureau foreign of the domestic the of intelligence is Intelligence intelligence for otherwise collection purpose activities of of by acquiring United States persons; (c) Information obtained in the course of a lawful foreign 29 B-30 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide intelligence, counterintelligence, international terrorism (d) or needed organizations, of (e) Information sources, disclosure. Intelligence intelligence or (f) to (g) or (h) directed (i) at United Incidentally in or (j) activities Information disseminate element to determine responsibilities information and derived disseminated elements elements accordance States elements of the information present or former present or who are or former contracting; reasonably for a lawful the purpose of personnel, investigation; reconnaissance not persons; that may violate Federal, may indicate administrative the state, each appropriate purposes of whether the information can from be retained signals with purposes. Intelligence for or made available in of for of to Community United and information Intelligence such or from information necessary In addition, or credibility; States that laws; other by overhead obtained foreign that contacts security acquired specific the their or out communications persons victims, within persons or arising any intelligence employment sources Information involvement such suitability Information physical, or concerning their targets, activities employees, for be potential determining local, applicants of and collect contractors Information believed former safety foreign FBI except may also or element employees, protect methods, by the present or organizations; Collection Community concerning to the who are terrorist needed be undertaken protect those international unauthorized shall to including counterintelligence drug investigation; Information hostages international element allowing by it, intelligence to Community the is procedures within to its that may only established the recipient relevant except Intelligence may be Community by the 30 B-31 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASS IFIED - FOR OFFICIAL USE ONLY Domest ic Investigatio ns and Operations Guide Director in coordination approved by the Attorney 2 . 4 Collection Community feasible United Techniques the within the Uni ted persons are electronic not are of the Attorney protect purposes . (a) of These electronic of hostile e l ectronic elements except of the military States as searches established and lawful by the or approved the and not , mail devices concerned with to the by the Director. other head Such legal rights governmental authorize: Agency , or (CIA) United to States conducting engage except in for the countermeasures to ; physical Searches searches in Community the United other than by counterintelligence directed or abroad for probable cause foreign against for by a mili t ary searches States the by FBI , to believe military intelligence commander law enforcement personnel purposes empowered purposes that elements such to , based persons the within the , when approve upon are of physical a finding acting as of agents powers ; and (2) United element the Intelligence services authorized of techniques element shall surveillance Intelligence procedures information , testing the for : (1) United such constitutional within (b ) Unconsented of against physical Intelligence training and techniques , or monitoring such surveillance purpose use with procedures The Central Defense Intelligence directed consultation such the Elements to containing shall use or Community , after limit . accordance General procedures States surveillance Intelligence a department of collection , unconsented unless in of intrusive authorized , physical and least surveillance they Secretary Elements abroad surveillance of . use States the General. shall Community head with States Searches persons by CIA of lawfully personal in its property possession of non- ; 31 B-32 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Version Dated: October 15, 201 1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domesti c Inves tigations and Operations Guide (c) United than Physical States the by elements FBI , except (1) employees their surveillance , present employment or employed former former States Intelligence of person in Community present intelligence employees contracting (2) the surveillance or or of a United the other for : Physical present of or former element , or contractors applicants for any or such ; and Physical surveillance of by a non - intelligence element Physical of a military of person a military service ; and (d) to collect foreign information the purposes , within abroad required if such General to believe an agent to of of to the Cooperate the purpose of and facilities (b) Unless case is a foreign the any and appropriate element otherwise the is in Attorney probable cause a foreign delegated to the approve Foreign amended , shall other Community the , provided authority defined be be Act . Law Enforcement protecting there 1978 , as that is States would The authority as of a United against power . means . hereby unless directed surveillance with by other purposes that , including Act significant a warrant each abroad intelligence which in with of for be undertaken Intelligence (a) against not accordance Assistance or shall electronic in for enforcement paragraph obtain General use law Surveillance exercised Elements technique technique of this Intelligence 2.6 the the States for person The Attorney approve determined that or use any to States be acquired . United techniques pursuant the to the , of , except Approval power a United reasonably undertaken has power cannot General delegated that intelligence that 2 . 5 Attorney person surveillance are law employees of the precluded Civil authorized enforcement , information Intelligence by law or Authorities. to : agencies , property for , Community; this Order , 32 B-33 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIE D - FOR OFFICIAL USE ONLY Domestic Investi gations and Operation s Guide participate in prevent or law enforcement clandestine intelligence international (c) terrorist Provide of agency , or when lives enfo r cement agencies of the expert shall . Render any or other enforcement applicable authorized to provision of for by any Provision in or other , to of department department or local law by ex p ert by the general counsel ; and assistance civil know l edge , o r support case powers , ; ass i s t ance each and authorities of into contracts enter in sponsorship Elements goods institutions of or the United such cooperation not to precluded law by may be undertaken 2 . 8 Consistency construed With to or 2 . 9 Undisclosed United States Other authorize Constitution . statutes the acting in United United organization , except by the of the States of of Community containing such be the Within elements the of the participate any such officials with shall . otherwise appropriate Intelligence a department violation disclosing accordance academic th i s Order on beha l f of without to in or States Community with Organizations may join authorized . on behalf affiliation of the the consen t of Noth i ng in activity or reveal for the institution No one in head of not are the co mpanies need with in organization head only for arrangements Participation Community intelligence or Laws. any Intelligence Intelligence the private arrangements Contracts of Community arrangements and or institutions officials or with contracts . Intelligence States purposes appropriate the services intelligence the , technical or law . 2 . 7 Contracting. the equipment use i gate by foreign activities endangered element invest narcotics personnel be approved providing (d) or are to activities specialized assistance personnel activities p r ocedures element element in element person of any of ' s the established concerned and or approved by 33 8-34 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide the Attorney Such to General, participation achieving Community element or of 2.10 or the its as to be acting human the shall subjects except Department informed of shall and the may activity of the where: composed persons of the FBI in or with the as reasonably Intelligence conduct research guidelines Human Services. be documented is of power. of for, primarily and a foreign accordance Health consent is of contract in essential Intelligence on behalf No element sponsor, is participation cases States on behalf it or concerned Human Experimentation. Community in Director. by the undertaken United if influencing investigation; not the No such except is a lawful only determined of members who are with designee. purpose The organization individuals believed purposes The participation course (b) consultation be authorized head for organization (a) shall lawful be undertaken the after on issued by The subject's required by those guidelines. 2.11 Prohibition acting or 2.12 on Assassination. on behalf conspire of to Indirect engage shall undertake activities which PART 3 General 3.1 Congressional the Director or Action. to of request by this by or shall the engage in Intelligence any person to Order. No covert influence policies, action United may be States political or media. Provisions Oversight. and Government No element intended opinion, employed assassination. forbidden is public States in on Covert processes, the elements, and entities cooperate with the responsibilities in participate Limitation conducted United Participation. Community 2.13 the No person heads of engaged Congress for The duties oversight in other and responsibilities departments, in intelligence the conduct of intelligence agencies, activities of of to its activities shall 34 B-35 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLAS SIFIED - FOR OFFI CIAL USE ONLY Domestic Investiga tions and Operations Guide be implemented in title Act. V of the including title activities as accordance and the procedures order . shall Heads this shall of with order approval , after General shall such head unable legal to or reach grounds concerned require Order 12333 , as pursuant available and of the to Intelligence In Director shall The activities shall or and further the in . Order Select All required 12333 , as the are or to other the NSC . that accordance with under Executive by Executive be established as promulgated amended , shall on Intelligence Committee containing department matter new procedures Committee Select of established amended , shall the General authorized be conducted in constitutional the 's approving where Attorney herein , as not department head 2 The Attorney instances refer requirements . an element the Part General of of FBI . Attorney for head head directives reasons , the Representatives the of this implement Director General Permanent 3 . 4 References of the Attorney Executive the the , Community to the than as possible to the New procedures expeditiously without NSC, supplementary on other procedures 12333 . and agreements . Order (or action implement Intelligence head procedures existing to department the 3 . 3 Procedures the by the than , the , or directives necessary a statement Community other appropriate with established covert by the No procedures consultation element) element . be issued provide i gence are within order all , supported procedures this any procedures Intell elements shall such as to law , Order . issue guidance applicable apply The President appropriate consistent of this law , including of Act , shall in . , and issue the defined Director applicable The requirements V of 3 . 2 Implementation with be made of on Intelligence of the Senate the House . and Transition . References Community " or to " SOICs " in " Senior executive Officials orders or 35 B-36 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Ve rsion Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide other Presidential heads of guidance, elements in President otherwise Community or guidance, shall elements the of directs; otherwise shall against sabotage, international States military acknowledged acquire security administrative support (3) by United support overt States to the following for it or their or of agents, activities or of the economic, intended not not disrupt, activities. or is and on behalf political, will does the that be apparent or the role or include: primary purpose of which is to counterintelligence activities of or or influence where but gathered United to States improve or maintain Government programs, or military activities the or activities; (2) routine to traditional operational or activities, an activity Government intelligence, traditional of President exploit, or persons, means Activities activities, the intelligence organizations publicly, (1) heads Order, deceive, other abroad, States or the information identify, Government United to this conducted action conditions the to organizations, Covert policies unless of means terrorist (b) the meanings: assassinations powers, United purposes espionage, or foreign of these conducted protect the Counterintelligence activities unless the Intelligence element Community, to directs. For have in be references Intelligence 3 . 5 Definitions. (a) Community to references Community, references be deemed the be deemed Intelligence Intelligence Director terms the shall such Traditional to such diplomatic or activities; Traditional law Government law activities; enforcement activities enforcement conducted agencies or routine support to the or (4) Activities to activities (other than provide activities routine described in 36 B-37 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLAS SIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Ope ration s Guide paragraph (1) , agencies Electronic nonpublic case who is who is communication , but a party means to States Government acquisition means present at including solely to the a the consent communication , without the place use determine of without an electronic communication visibly not equipment transmitter of the the or , in consent of radio direction location of - a . (d) or United by electronic of a nonelectronic a person finding of other surveillance communication of a person of (3)) abroad. (c) the (2) , or means Employee detailed a person to , or acting for employed an element by , assigned within the Intelligence Community . (e) Foreign capabilities , intentions or elements thereof international (f) terrorists Intelligence of the pursuant to this Intelligence the governments , foreign persons , or foreign intelligence and means activities Community all activities are authorized elements of that to conduct order. Community (1) foreign to . Intelligence Intelligence Intelligence relating . elements (h) of organizations includes Intelligence information , or activities , foreign counterintelligence (g) means intelligence and Community refers The Office the to : of the Director of National ; (2) The Central Intelligence (3) The National Security ( 4) The Defense Intelligence Agency ; (5) The National Geospatial - Intelligence (6) The National Reconnaissance (7) The other offices Agency ; Agency ; within Office the Agency ; ; Department 37 B-38 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ve rsion Dated : October 15, 201 1 UNCLASSIFIED - FOR OFFI CIAL USE ONLY Domestic Investigati ons and Operations Guide of Defense for intelligence the collection through (8) elements of of specialized reconnaissance programs The intelligence the Army , the national and Navy , the foreign ; counterintelligence Air Force , and the Marine Corps ; (9) of The intelligence Investigation Drug The Office Enforcement (11) of of (13) (14) Department of of Treasury Coast Such as may be designated Director as an element National from within or determined or that by the order is , to agency ; and of Intelligence and Analysis of the of Intelligence and Analysis of the ; Security ; and other elements means of with determined for to more involves designated or agency jointly agency Intelligence concerned any guidance of section one United threats to of the by , the gathered pertains issued with than to information , that purpose Related , regardless including States accordance or Community . and the department department intelligence United consistent that the any , or and all derived of President Intelligence the counterintelligence Guard ; and Intelligence pertain Energy ; the the in of of of Director and Research head outside of and the which Intelligence Intelligence and Security source Bureau of by the National (i) Intelligence The intelligence (16) the Federal ; Homeland the Security Department The Office (15) elements the The Office the National of The Bureau State of of The Office (12) Department the Administration; Counterintelligence Department of ; (10) the elements access 1.3(a) States United , as by the to President , information (1) of this Government States , its 38 B-39 UNCLASSIFIED - FOR OFFICIAL USE ONL Y Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Dome stic Invest igations and Operations Guide people or , property use of bearing weapons , and other jointly depar t me nts Forces acquire alien t h e head , o r activ security means . al l programs Community o f a United . of well designated term the sole l y for , States Such i ties operations matter Community , as President inte l l i g e nce States known by the permanent i ally resident States by a foreign alien composed aliens United does not military the by United , or revoked planning States supersede prov i sions and Armed such amended , are incons 3.7 Provisions General this i stent Consistent order ( 1) shall (2) administrative and 13355 Order Executive this controlled of August ( 10 ) of 12958 , as Order 27 , Part 1 amended , 12958 , as Order. . with section 1 . 3(c) be construed the Functions Management in the and 1 . 3 (b ) ( 9 ) and with Authority agency , or in . Executive provisions be a or permanent n directed 13354 paragraphs , an assoc i at i on incorporated Orders citizen to citizens governments within extent r ated a corporatio or States concerned States a corporation ; and a United element United Executive 2004 , are (a ) of , exce p t for . means , an unincorpo government 3 . 6 Revocation the person intelligence resident substant in Program Inte l ligence military other i on , . (k ) United to any Intelligence or by the tactical ; or , proliferat or homeland the the , projects to of of agency programs conduct of Di r ecto r and or development Intelligence programs department include national activities by the ; the destruction States The National projects any interests of mass on United (j ) as , or and granted head of im p air by law thereof the Budget , or to of this or to order otherwise a department affect : or ; or Di rector of the relating to budget legislative , nothing proposals Office of , . 39 B-40 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated : October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (b) This applicable law order and shall be implemented subject to the consistent availability with of appropriations. (c) This management and does of the is any , enforceable against the entities , its United intended executive not , create procedural person order officers, branch right at States, only to and is or benefit law or its departments, employees, in or improve not the internal intended to , , substantive equity, agents or by any party agencies or , or other any . Is/ Ronald Reagan THE WHITE HOUSE December 4 , 1981 40 8-41 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide APPENDIXC: (U//FOUO) USEAND TARGETINGOFA FEDERAL PRISONERHELDIN THE CUSTODYOF THE BOP OR USMS DURINGAN FBI PREDICATEDINVESTIGATION; INTERVIEWOFA FEDERALPRISONERHELDIN THE CUSTODYOF THE BOP OR USMS DURINGAN FBI ASSESSMENTOR PREDICATED INVESTIGATION C.1 (U) OVERVIEW /SUMMARY (U//FOUO) Use and Targeting a Federal Prisoner: During an FBI Predicated Investigation, it may be necessary and appropriate to: 1) use a cooperating federal prisoner to gather and obtain evidence and intelligence; or 2) target a federal prisoner. This policy sets forth the approval process for the use of and targeting of a federal prisoner held in the custody of the Bureau of Prisons (BOP) or the United States Marshals Service (USMS). (U//FOUO) Interview a Federal Prisoner: During an FBI Assessment or Predicated Investigation, it may be necessary and appropriate to interview a federal prisoner in the custody of the BOP or USMS. This policy sets forth the approval process for the interview of a federal prisoner held in the custody of the BOP or the USMS during an FBI Assessment or Predicated Investigation. (U//FOUO) Exclusions from this Policy: This policy does not apply to: A) (U//FOUO) the use of a Federal Prisoner, who is a Confidential Human Source (CHS), under the circumstances listed in the CHSPM section 6.2.1; or B) (U/ /FOUO) the use, targeting, or interview of a prisoner held in the custody of the Department of Defense (DOD). C.2 (U) LEGAL AUTHORITY (U) The FBI is authorized by the Department of Justice (DOJ) to use and target a federal prisoner for investigative purposes and interview a Federal Prisoner (DOJ Memorandum "Use and Targeting of Federal Prisoners in Investigations," January 22, 2009). C.3 (U) DEFINITIONS (U) Federal Prisoner: For purposes within this section, a federal prisoner is one who is held in the custody of either the BOP or the USMS pursuant to an order of a court in connection with a criminal matter, regardless of where the person is housed. (U) Use of a Federal Prisoner: Use of a federal prisoner means to employ a federal prisoner during an investigation in such a manner that the prisoner will interact with others who are not members of law enforcement (e.g., the prisoner will engage in a consensually monitored telephone call with a target) or the prisoner will be taken out of the custody of BOP or USMS C-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 1 'i, 20 11 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (e.g., the prisoner is removed from the prison to assist the FBI in locating a hide out) or law enforcement will interact covertly with the prisoner (e.g., an undercover agent engages with the prisoner in the visiting room of the prison). (U) Targeting a Federal Prisoner: "Targeting" a federal prisoner means that the federal prisoner is the target of the investigation and that investigative activity will directly interact with either the prisoner or the federal facility (e.g., as part of a money laudering investigation targeting a prisoner, the FBI wishes to engage in a consensually monitored conversation with the prisoner) . (U) Interview of a Federal Prisoner: Interview of a federal prisoner means to interact with a federal prisoner , overtly representing oneself as an FBI employee , in order to gather information. C.3.1 (U) USE AND TARGETINGA FEDERALPRISONER (U//FOUO) An FBI employee may request the use of or the targeting of a federal prisoner in an FBI Predicated Investigation by completing the DOJ "Request to Utilize or Target a BOP or USMS Prisoner for Investigative Purposes" form (herein the "DOJ form") located on the CPO DIOG SharePoint site. (U//FOUO) The FBI Employee must document the required information and approvals as specified below on the DOJ form. A copy of the form must be uploaded and serialized in the appropriate investigative file, after it has been approved by the field office SSA and submitted to the FBIHQ operational unit for consideration and coordination of approval by DOJ. C.3.2 (U) INTERVIEWA FEDERALPRISONER (U//FOUO) An FBI employee may request to interview a federal prisoner in an FBI Assessment or Predicated Investigation by obtaining: the approval of the appropriate FBI official as specified below; and concurrence of the Warden/BOP or USMS , as appropriate , or an order of the court. The results of the interview should be documented with an EC or 302, as appropriate under the circumstances, and uploaded and serialized into the appropriate investigative file. C.4 (U) APPROVALREQUIREMENTS C.4.1 (U) APPROVAL - USEAND TARGETINGA FEDERALPRISONER (U//FOUO) The FBI employee must obtain the prior approval of the field office SSA and must document the required information using the required DOJ form to seek the approval of FBIHQ and DOJ for use or targeting a federal prisoner. (U//FOUO) DOJ Form: The field office must submit the DOJ form to the appropriate FBIHQ operational unit for review and approval, as specified below. The FBIHQ operationa. unit will coordinate the review and approval process with DOJ, as specified below. The process is as follows: A) (U//FOUO) The FBI employee must: 1) (U//FOUO) Obtain the approval of the field office SSA responsible for the Predicated Investigation ; Version Dated: October 15, 2011 C-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 2) (U//FOUO) Obtain the written concurrence of the Warden/BOP/USMS, as appropriate; 3) (U//FOUO) Complete the DOJ "Request to Utilize or Target a BOP or USMS Prisoner for Investigative Purposes" form ("DOJ form") located on the DIOG SharePoint site; 4) (U//FOUO) Obtain a Sealed Court Order: If the request involves the temporary transfer of a federal prisoner from the custody of BOP or USMS to the FBI, then the AUSA must obtain a sealed court order authorizing the transfer of custody and must adhere to FBI guidelines for transporting a federal prisoner (see Section C.8 below); 5) (U//FOUO) Email the completed DOJ form to FBIHQ operational unit point-of-contact; and 6) (U//FOUO) If the request is approved by the Office of Enforcement Operations (OEO), DOJ the FBI employee must, within 15 days of completion of use or targeting of the prisoner, provide the FBIHQ operational unit with the information necessary to complete the final disposition Action Memorandum (See item C.5.1.B.4 below). B) (U//FOUO) The FBIHQ operational unit must: 1) (U//FOUO) Review the DOJ form and obtain the approval of the appropriate operational Section Chief; 2) (U//FOUO) Forward by facsimile (fax) the DOJ form to OEO for consideration and approval (OEO fax# is (202) 514-5143) ; 3) (U//FOUO) Provide the field office timely notification ofOEO ' s decision whether to grant permission to use or target the prisoner; and 4) (U//FOUO) Within 30 days of completion of use or targeting of the prisoner, provide OEO with a final disposition Action Memorandum. (U//FOUO) Exigent Circumstances: Ifthere are exigent circumstances requiring an immediate response, OEO will accept oral requests for approval from the FBIHQ operational unit. Confirmation of the request and appropriate supporting information must, however, be submitted to OEO in writing as soon as possible after oral approval is obtained. (U//FOUO) For questions or exigent circumstances, the field must contact the FBIHQ operational unit , who will be responsible for contacting the DOJ Chief of the Witness Security and Operations Unit at (202) 307-3314, OEO , or Deputy Chief of Special Operations, at (202) 514-3684. (U//FOUO) Note: The DOJ Memorandum governing the Use and Targeting of Federal Prisoners is labeled "Sensitive Investigative Matter." This is not a SIM as defined in DIOG Section 10. As such, this policy does not require CDC review and SAC approval. C.4.2 (U) APPROVAL - INTERVIEWA FEDERALPRISONER (U//FOUO) The FBI employee must: A) (U//FOUO) Obtain the prior approval of the field office SSA to interview a federal prisoner in locations listed under Section C.6.B .1-3 below; B) (U//FOUO) Obtain the prior approval of the field office SSA and SAC to interview a federal prisoner in any location under Section C.6.B.4 below ; and UNCLASSIFIED C-3 - FOR OFFICIAL USE ONLY Version Dated: t.ktober 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide C) (U//FOUO) Obtain the concurrence of the Warden/BOP/USMS , as appropriate. C.5 (U) EXEMPTIONSTO DOJAPPROVALREQUIREMENT (U//FOUO) When all four of the following conditions are met, neither approval nor consultation with DOJ is required for a cooperating prisoner to engage in consensually monitored telephone calls, text messages, or computer communications once the prisoner has given consent. (This situation will typically occur when the prisoner is newly arrested and still in FBI or USMS custody): A) (U//FOUO) Cooperating prisoner is not in BOP custody or under BOP supervision (e.g., not in a BOP operated facility, BOP contract facility, BOP halfway house , or under BOP home detention /electronic monitoring); B) (U//FOUO) The prisoner will participate in consensual monitoring from one of the following locations: 1) (U//FOUO) A detention facility not operated by BOP; 2) (U//FOUO) A United States Attorney's Office (USAO); 3) (U//FOUO) An office of an investigative agency ; or 4) (U//FOUO) A secure location under the control of the FBI; C) (U//FOUO) No follow-up activity by the prisoner that would require OEO approval is anticipated to occur as a result of the consensual monitoring; and D) (U//FOUO) The FBI employee supervising the consensual monitoring has complied with all FBI policies governing consensual monitoring. (U) Note: Unless all four of the above conditions are met, the agent must have OEO approval to use a federal prisoner to engage in consensual monitoring. (U//FOUO) Neither approval nor consultation with OEO is required for a cooperating prisoner to engage in a debriefing, polygraph, proffer, re-enactment at scene of a crime; or aiding in the location of a hide-out, etc., once the prisoner has given consent, if the prisoner will participat e in such activity in one of the following locations: A) (U//FOUO) A detention facility, including one operated by the BPO or USMS; B) (U//FOUO) A United States Attorneys Office; C) (U//FOUO) An office of an investigative agency; or D) (U//FOUO) A secure location under the control of the FBI. C.6 (U) EXTENSIONREQUESTS (U//FOUO) Agents may request extensions of the authority to use or target a prisoner in an FB investigation by providing OEO with a written report containing the following: A) (U//FOUO) Up-to-date summary of use or targeting of the federal prisoner ; B) (U//FOUO) Justification for continued use or targeting of the federal prisoner ; C) (U//FOUO) Endorsement of AUSA; Ver,20 1 Q-6 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide appropriate equipment. (See DIOG Appendix Q - Definitions and Section 18 for FISA and Title III.) B) (U//FOUO) Consensual monitoring of communications, including consensual computer monitoring, or electronic surveillance (ELSUR) - where there is no reasonable expectation of privacy is permitted in Predicated Investigations. These methods usually do not require court orders or warrants unless they involve an intrusion into an area where there is a reasonable expectation of privacy or non-consensual monitoring of communications, but legal review is generally required to ensure compliance with legal requirements. Examples of this type of surveillance include, but are not limited to, CCTV, direction finders, tracking devices, etc. (See DIOG Appendix Q - Definitions and Section 18 for Consensual Monitoring, CCTV, Electronic Tracking Device, Pen Register Device, and Trap and Trace Device.) (U//FOUO) Physical surveillance - is the deliberate observation by an FBI employee of persons , places , or events , on either a limited or continuous basis, in areas where there may or may not be a reasonable expectation of privacy. (See DIOG Section 18.5.8 for physical surveillance in situations not requiring a court order and a discussion of the distinction between physical surveillance and casual observation). Factors to consider in determining whether observations are casual observation or physical surveillance include : (i) the duration and frequency of the observation of a particular person or location, (ii) the location of the observation point , (iii) whether the observation is done from a stationary position or a moving position , and (iv) whether the observation is being done with the unaided eye. The use of mechanical devices operated by the user (e.g., binoculars; hand-held cameras ; remotely operated and continually monitored cameras; radiation, chemical or biological detectors) is authori zed provided that the device is not used to collect information in which a person has a reasonable expectation of privacy . (See also DIOG Section 18.6.3.8 (CCTVNideo Surveillance Where There is a Reasonable Expectation of Privacy in the Area to be Viewed or for the Installation of the Equipment)) . (U) Threat to the National Security: International terrorism; espionage and other intelligence activities , sabotage , and assassination, conducted by, for, or on behalf of foreign powers, organizations , or persons; foreign computer intrusion; and other matters determined by the Attorney General , consistent with Executive Order 12333 or a successor order. (U//FOUO) Trap and Trace Device: Captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing or signaling information reasonably likely to identify the source of a wire or electronic communication, provided that such information does not include the contents of any communication . (U//FOUO) Undercover Activity: An "undercover activity" is any investigative activity involving the use of an assumed identity by an undercover employee for an official purpose, investigative activity , or function . (U//FOUO) Undercover Employee: An employee of the FBI, another federal, state, or local law enforcement agency , another entity of the United States Intelligence Community (USIC), or another foreign intelligence agency working under the direction and control of the FBI whose relationship with the FBI is concealed from third parties by the maintenance of a cover or alias identity for an official purpose, investigative activity , or function. (U//FOUO) Undercover Operation: An "undercover operation" is an operation that involves a series ofrelated "undercover activities" over a period of time by an "undercover employee." A Q-7 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated: October 1 S 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide series of related undercover activities consists of more than five separate substantive contacts by an undercover employee with the individuals under investigation. In investigations relating to activities in violation of federal criminal law that do not concern threats to the national security or foreign intelligence, undercover activity involving sensitive circumstances, which are listed in the AGG-UCO and the FGUSO, constitutes an undercover operation regardless of the number of contacts involved. A substantive contact is a communication, whether by oral, written, wire, or electronic means, that includes information of investigative interest. Mere incidental contact (e.g., a conversation that establishes an agreed time and location for another meeting) is not a substantive contact within the meaning of this policy . (U) United States: When used in a geographic sense, means all areas under the territorial sovereignty of the United States. (U) United States Person (USPER): Any of the following, but not including any association or corporation that is a foreign power, defined as an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments: A) (U) An individual who is a United States citizen or an alien lawfully admitted for permanent residence; B) (U) An unincorporated association substantially composed of individuals who are United States persons (USPERs ); or C) (U) A corporation incorporated in the United States. (U) If a group or organization in the United States that is affiliated with a foreign-based international organization operates directly under the control of the international organization and has no independent program or activities in the United States, the membership of the entire international organization shall be considered in determining whether it is substantially composed of USPERs. If, however, the United States-based group or organization has programs or activities separate from, or in addition to, those directed by the international organization, only its membership in the United States shall be considered in determining whether it is substantially composed ofUSPERs. A classified directive provides further guidance concerning the determination ofUSPER status. (U) Use: When used with respect to human sources, means obtaining information from, tasking, or otherwise operating such sources. Version Dated October 15, 20 ll Q-8 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide APPENDIXR: (U) SUPERCEDEDDOCUMENTSAND NFIPM,MIOG, AND MAOPSECTIONS (U//FOUO) This guide supersedes the following FBI policies and procedures : R-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Ver51on Dated: October 15, 2011 UNCLASSIFIED // FOUO DIOG Supersessions Part MIOG Intro MIOG Intro Section Preface Preface MIOG Intro Section 1 Section : S1: Investigative Authority and Responsibility(12) DIOG Preamble DIOG Preamble MIOG Intro MIOG Intro Section 1 Section 1 DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble MIOG Intro Section 1 DIOG Preamble DIOG Preamble MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section 1-1 AUTHORITY OF A SPECIAL AGENT 1-2 INVESTIGATIVE RESPONSIBILITY 1-3 THE ATTORNEY GENERALS GUIDELINES ON GENERAL CRIMES, RACKETEERING ENTERPRISE AND TERRORISM ENTERPRISE INVESTIGATIONS 1-3 INTRODUCTION 1-31.GENERAL PRINCIPLES 1-3 II. GENERAL CRIMES INVESTIGATIONS 1-3111.CRIMINAL INTELLIGENCE INVESTIGATIONS 1-3 IV. INVESTIGATIVE TECHNIQUES 1-3 V. DISSEMINATION AND MAINTENANCE OF INFORMATION 1-3 VI. COUNTERTERRORISM ACTIVITIES AND OTHER AUTHORIZATIONS 1-3 VII. RESERVATION 1-4 INVESTIGATIVE AUTHORITY AND THE FIRST AMENDMENT Section : S2: Management and Allocation Programs (57) 2-1 NATIONAL PRIORITY PROGRAMS 2-1.1 Foreign Counterintelligence (FCI) 2-1.1.1 Definition 2-1.1.2 Objective 2-1.2 Organized Crime 2-1.2.1 Definition 2-1 .2.2 Objective 2-1.2.3 Ranking of Organized Criminal Activities 2-1.3 Drug 2-1.3.1 Definition 2-1.3.2 Objective 2-1.4 Counterterrorism 2-1.4.1 Definition 2-1.4.2 Objective 2-1.5 White-Collar Crime 2-1.5.1 Definition 2-1.5.2 Objective 2-1.5.3 Ranking of Activities 2-1.6 Violent Crimes and Major Offenders 2-1.6.1 Fugitive Subprogram 2-1.6.2 Government Reservation Crimes Subprogram 2-1.6.3 Interstate Theft Subprogram 2-1.6.4 Violent Crimes Subprogram 2-1.6.5 Violent Crimes and Major Offenders-Organized Crime Druq Enforcement Task Force Subproqram 2-2 OTHER PROGRAMS 2-2.1 Deleted 2-2 .1.1 Deleted 2-2.1.2 Deleted 2-2.1.3 Deleted 2-2.2 Applicant Investigations - Reimbursable and Non reimbursable 2-2.2. 1 Definition 2-2.2.2 Objective 2-2.2 .3 Ranking of Activities 2-2.3 Civil Rights 2-2.3. 1 Definition 2-2 .3.2 Objective 2-2.3 .3 Ranking of Activities 2-2.4 FBI Security Program 2-2.4 .1 Definition 2-2.4.2 Objective 2-2.4.3 Ranking of Activities 2-2.5 Deleted 2-2 .5.1 Deleted 2-2.5.2 Deleted 2-2.5.3 Deleted DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG Intro Intro Intro Intro Intro MIOG Intro 1 1 1 1 1 Section 1 MIOG Intro Section 1 MIOG Intro Section 1 MIOG Intro Section 1 MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Section Section Section Section Section Section Section Section Sect ion Section Section Section Section Section Section Section Section Section Section Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 MIOG Intro Section 2 MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Intro Intro Intro Intro Intro 2 2 2 2 2 MIOG Intro Section 2 MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Intro Version Dated: October 15, 2011 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 Section Title Section : Preface ( 1) Preface R-2 UNCLASSIFIED//FOUO DIOG 1 Supersession DIOG Preamble DIOG Preamble Preamble Preamble Preamble Preamble Preamble DIOG 2 Supersession DIOG Preamble DIOG Preamble Preamble Preamble Preamble Preamble Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble DIOG Preamble DIOG Preamble DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble DIOG Preamble DIOG Preamble DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble Preamble UNCLASS[flED /I FOUO D!OG Supersessions Part MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro MIOG Intro Section Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 MIOGI.I Section 7 MIOGI.I Section 7 MIOGI.I Section 7 Section Title 2-2.6 Deleted 2-2.6 .1 Deleted 2-2.6.2 Deleted 2-2.6.3 Deleted 2-2.7 Deleted 2-2.7.1 Deleted 2-2.7.2 Deleted 2-2.7.3 Deleted 2-2.8 Deleted 2-2.8. 1 Deleted 2-2.8.2 Deleted 2-2.8.3 Deleted 7-5 CLARIFICATION REGARDING AN INVESTIGATION AS OPPOSED TO A PRELIMINARY INQUIRY 7-6 DEPARTMENTAL INSTRUCTIONS REGARDING QUESTIONABLE CASES 7-20 ADMINISTRATIVE SUBPOENAS IN CHILD ABUSE AND CHILD SEXUAL EXPLOITATION (CSE) CASES MIOGI.I Section 9 9-7 .2 Use of Closed Circuit Television (CCTV) MIOGI.I Section 62 62-3 DOMESTIC POLICE COOPERATION - STATUTE MIOGI.I Section 62 62-3.3 Policy MIOGI.I Section 62 62-3.4 Office of Origin MIOGI.I Section 62 62-3 .5 Classification MIOG 1.2 MIOG 1.2 MIOG 1.2 Section 157 Section 157 Section 157 MIOG 1.2 Section 157 MIOG 1.2 MIOG 1.2 Section 157 Section 157 MIOG 1.2 Section 157 MIOG 1.2 Section 157 Section : S 157 Civil Unrest (8) 157-1 RESPONSIBILITY OF THE BUREAU 157-1.1 Categories for Reporting 157-2 POLICY REGARDING REPORTING OF CIVIL DISORDERS 157-3 REPORTING OF DEMONSTRATIONS 157-4 PHOTOGRAPHIC SURVEILLANCES 157-5 DISSEMINATION OF DATA PERTAINING TO CIVIL DISORDERS AND DEMONSTRATIONS 157-6 REPORTING PROCEDURES TO BE UTILIZED IN CIVIL DISORDERS AND DEMONSTRATIONS 157-7 CHARACTER 161-10 DISSEMINATION TO THE WHITE HOUSE COMPLEX (WHC) 163-1.1 Investigative Request 163-2 INVESTIGATIVE INSTRUCTIONS AND PROCEDURES MIOG 1.2 Section 157 MIOG 1.2 Section 161 MIOG 1.2 Section 163 MIOG 1.2 Section 163 MIOG 1.2 Section 163 MIOG 1.2 Section 163 MIOG 1.2 Section 163 MIOG MIOG MIOG MIOG Section Section Section Section 1.2 1.2 1.2 1.2 163 163 163 163 DIOG 1 Supersession DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG 5, 6 and 7 Paragraphs #1 and 2 only. DIOG 5. 6 and 7 DIOG 18.6.4 Paragraphs #2 (all subparts) ; 3 (all sub-parts); and 4 onlv. DIOG 18.6.3 Paragraphs # 5 and 6 only. DIOG 12 DIOG 14 DIOG 12. See new 343 classification DIOG 12 DIOG 12 DIOG 12 DIOG 12 DIOG 12 DIOG 12 DIOG 12 DIOG 12 DIOG 12 DIOG 14, 18 DIOG 12 DIOG 12 In-part, Paragraphs #1 a and b; #2; and #6 only for new 163 classifications. DIOG 12 DIOG 12 163-2.1 Opening Foreign Police Cooperation (FPC) General Criminal Matters (GCM) 163-2. 1. 1 Letter Rogatory Process 163-3 REQUESTS FOR TERRORISM ENTERPRISE INVESTIGATIONS 163-6 REPORTING 163-7 RULE 6(E) MATERIAL 163-8 PRIVACY ACT 163-9 RIGHT TO FINANCIAL PRIVACY ACT 288-5 .1 Access ing Computer Records - Summary of Compelled Disclosure under Title 18. USC. Section 2703 288-5.1.1 Subpoena - ECPA Requirements 288-5.1.2 Subpoena with Prior Notice to the Subscriber or Customer 288-5 .1.3 Section 2703(d) Order 288-5.1.4 Section 2703(d) Order with Prior Notice to the Subscriber or Customer 288-5.1.5 Search Warrant 288-5 .1.6 Voluntary Disclosure 289-13.3 Use of a Past or Present Prisoner-Witness in an lnvestioation (Formerly Part 2. 27-16 .5) MIOG 1.2 Section 288 MIOG 1.2 Section 288 MIOG 1.2 Section 288 MIOG 1.2 Section 288 MIOG 1.2 Section 288 MIOG 1.2 MIOG 1.2 Section 288 Section 288 MIOG 1.2 Section 289 MIOG 1.2 Section 308 308-1.1 Evidence Response Team Mission MIOG 1.2 Section 308 308-2 DEFINITION OF ERT CONCEPT MIOG 1.2 Section 308 308-3 PROPER TURKING R-3 UNCLASSIFIED//FOUO DIOG 2 Supersession DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG Preamble DIOG 8 and 12 DIOG 12 DIOG 18 DIOG 14 DIOG Appendix O DIOG 18.6.8 DIOG 18.6.8 DIOG 18.6.8 DIOG 18.6.8 DIOG 18.6.8 DIOG 18.7.1 DIOG 18.6.8 DIOG 11.5 DIOG 18.6.1 and 18.6.2 generally, DIOG 12 for expert assistance. Paragraph # 4 only. DIOG 12 Paragraph # 2 only. DIOG 12 Version Dated: Occtober 15, 20 11 UNCLASSIFIED//FOUO DIOG Supersessions Part Section Section Title DIOG 1 Supersession Paragraph # 1 only. DIOG 12. See new classifications 319-1 INTELLIGENCE PROGRAM 319-2 FIELD INTELLIGENCE GROUP (FIG) STRUCTURE AND FUNCTIONS generally , DIOG 5 MIOGl.2 Section 308 MIOGl.2 Section 319 MIOGl.2 Section 319 MIOG 1.2 Section 319 319-4 INTELLIGENCE COLLECTION MIOGl2 MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section 319 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 Section 2 MIOG Section 2 MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Section Section Section Section 2 2 2 2 2 2 2 2 2 319-5 COLLECTION MANAGEMENT 2-5 COMPLAINTS (RULE 3) 2-5.1 Authorization of U.S. Attorney (USA) 2-5.3 State Prosecutions 2-5.4 Authority for Issuance of Warrant 2-5.5 Notification to Special Agent in Charge (SAC) 2-6 WARRANT OF ARREST OR SUMMONS (RULE 4) 2-6 .1 Forms of Warrant 2-6.2 Issuance of Warrant or Summons 2-6.3 Execution 2-7 PROCEEDINGS BEFORE THE MAGISTRATE (RULE 5) 2-7.1 Initial Appearance 2-9 GRAND JURY (RULE 6) 2-9 .1 Purpose 2-9.2 Persons Present 2-9 .3 Disclosure 2-9.4 Exceptions 2-9.5 Limitation of Use 2-9.5.1 Matters Occurring Before the Grand Jury 2-9.5.2 Physical Evidence and Statements MIOG Section 2 2-9.6 Documentation of Disclosures of Grand Jury Material MIOG Section 2 MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section 2 2 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 7 7 MIOG Section 7 MIOG MIOG MIOG I MIOG Section Section Section Section MIOG Section 7 7 7 7 7 MIOG Section 7 MIOG Section 7 MIOG MIOG Section 7 Section 7 MIOG Section 7 MIOG Section 7 MIOG Section 7 Ver sion Dated: October 15, 2011 DIOG 2 Supersession 308-4 ERT SUBCLASSIFICATIONS-ALPHA DESIGNATORS 2-9.6.1 Documentation of Internal Disclosures of Grand Jury Material 2-9. 7 Storage of Grand Jury Material 2-9.8 Requests for Subpoenas in Fugitive Investigations · S4 Juveniles and Juvenile Delinquency Act 4-1 GENERAL STATEMENT 4-1.1 Purpose of Act 4-2 SPECIFIC PROVISIONS OF THE ACT 4-2.1 Definitions 4-2 .2 Arrest Procedure 4-2.2.1 Advice of Rights 4-2.2.2 Notification of USA and Juveniles Parents 4-2.2.3 Fingerprinting and Photographing 4-2.2.4 Press Releases 4-2.2.5 Interviews of Juveniles 4-2.2.6 Initial Appearance Before Magistrate 4-2.3 Detention 4-2.4 Prosecution 4-2.5 Use of Juvenile Records S7 Interviews 7-1 USE OF CREDENTIALS FOR IDENTIFICATION 7-2 THOROUGHNESS , PRECAUTIONS , TELEPHONIC AND USE OF INTERPRETERS 7-2.1 Thoroughness and Precautions During Interviews 7-2.2 Telephone Interviews 7-2.3 Use of Interpreters 7-3 REQUIRING FBIHQ AUTHORITY 7-4 ONE VS TWO AGENT INTERVIEW OF SECURITY SUBJECT 7-5 EVALUATION OF AN INTERVIEW 7-6 INTERVIEWING COMPLAINANTS AND SUBJECTS OF CRIMINAL 7-6.1 Interviews of Complainants 7-6.2 Subjects of Criminal Investigations 7-7 DEVELOPMENT OF DEROGATORY INFORMATION DURING INTERVIEWS 7-8 IDENTIFICATION OF SUSPECTS 7-9 INTERVIEWS INVOLVING OR RELATING TO COMPLAINTS R-4 UNCLASSTFIED//FOUO generally, DIOG 5 Paragraphs # 1 and 3 oenerallv . DIOG 5 generally, DIOG 5 DIOG 19 DIOG 19 DIOG 3, 12 DIOG 19 DIOG 19 DIOG 18 and 19 DIOG 19 DIOG 19 DIOG 19 DIOG 18 and 19 DIOG 11.9-11.9.1 DIOG 11.9-11.9.1 DIOG 11.9 - 11.9.1 DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG 19 18.5.9 and 18.5.9 and 18.5.9 and 18.5.9 and 18.5.9 and 18.5.9 and 18.5.9 and 18.5.9 and 18.6.5 18.6.5 18.6.5 18.6.5 18.6.5 18.6.5 18.6.5 18.6.5 DIOG 18.5.9 and 18.6.5 DIOG 18.5.9 and 18.6.5 DIOG 11.9-11.9.1 DIOG 11.9-11.9.1 DIOG 18.5.9 and 18.6.5 DIOG 18.5.9 and 18.6.5 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 18 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 18.5.6 DIOG 18.5.6 DIOG 18.5.6 DIOG DIOG DIOG DIOG 18.5.6 18.5.6 18.5.6 18.5.6 DIOG 18.5.6 DIOG 18.5.6 DIOG 18.5.6 DIOG 18.5.6 DIOG 18.5 6 DIOG 18.5.6 DIOG 18.5 6 DIOG 18.5.6 a - : UNCLASSlFIED //FOUO maG~'u\)\!I':,~.,,.,i\)w, Part MIOG MIOG MIOG MIOG Section Section 7 Section 7 Section 7 Section 7 MIOG Section 7 MIOG MIOG MIOG MIOGII MIOGII MIOGII MIOGI MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section 9 Section 9 Section 9 Section 9 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 Section 10 MIOGII Section 10 MIOGII Section 10 MIOGII Section 10 MIOGII Section 10 MIOG MIOG MIOG MIOG Section Section Section Section MIOG Section 10 MIOG MIOG MIOG Section 10 Section 10 Section 10 10-8.3.1 Definitions 10-8.3.2 Interception of Electronic Communications 10-8.3.3 Undercover Use of the Internet 10-8.4 Monitoring the Internet 10-9 ELECTRONIC SURVEILLANCE (ELSUR) PROCEDURES AND REQUIREMENTS 10-9.1 Definitions 10-9.4 ELS UR Searching Procedures 10-9.10 Electronic Surveillance - Title Ill Criminal Matters MIOG Section 10 10-9.11 Emergency Provisions , Title Ill Criminal Matters MIOG MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Section MIOG Section 10 MIOG MIOG Section 10 Section 10 MIOG Section 10 MIOGII Section 10 10-10.1 Use of Consensual Monitoring in Criminal Matters DIOG 11.5 DIOG 18.6.1 and 18.6.2 MIOGII Section 10 10-10.2 Monitoring Telephone Conversations in Criminal Matters DIOG 11.5 DIOG 18.6.1 and 18.6.2 MIOGII Section 10 10-10.2.1 Access to Recordings and Information Concerning Monitored Inmate Telephone Calls in Federal Prisons DIOG 11.5 DIOG 18.6.1 and 18.6.2 MIOGII Section 10 10-10.3 Monitoring Nontelephone Communications In Criminal Matters DIOG 11.5 DIOG 18.6.1 and 18.6.2 10 10 10 10 10 10 10 10 10 10 Section Title 7-9.1 Complaints Received at the Field Office 7-9.2 Complaints in Person or by Telephone 7-9.3 Complaints By Letter 7-9.4 Complaints Critical of the FBI or Its Employees 7-9.5 Legal Requirements of the Privacy Act of 1974 (Title 5,USC, Section 552a) S9 Surveillances 9-1 GENERAL GUIDELINES 9-1.1 Surveillance Restrictions 9-7.5 Surveillance Logs S10 Records Available and Investigative Techniques 10-1 INTRODUCTION 10-2 RECORDS AVAILABLE 10-3 INVESTIGATIVE TECHNIQUES 10-6 MAIL COVERS 10-6.1 United States Postal Service (USPS) Regulations 10-6.2 Policy 10-6.3 Requesting Approval 10-6.3.1 Fugitive or Criminal Cases 10-6.3.2 National Security Cases 10-7 STOP NOTICES 10-7.1 Definition 10-7.2 Placement of Stops 10-7.3 Indexing Stops 10-7.4 Removal of Stops 10-7.5 Types of Stops 10-7.5.1 Savings Bonds 10-7.5.2 Immigration and Naturalization Service (INS) 10-7.5.3 Bureau of Prisons 10-8 STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS 10-8.1 Compelled Disclosure of the Contents of Stored Wire or Electronic Communications 10-8.2 Access to Transactional Information DIOG 1 Supersession DIOG 14 DIOG 11.3 DIOG 11.3 DIOG 18.5.8 DIOG 18.5.8 DIOG 18 DIOG 3 DIOG 18 DIOG 18 DIOG 18 in-part DIOG 18 DIOG 18.6.10 DIOG 18.6.10 DIOG 18.6.10 DIOG 18.6.10 DIOG 18.6.10 DIOG 18.6.10 DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG DIOG 18.6.8 DIOG 11.12 DIOG 18.6.8 DIOG 18.6.8 10-8.3 Access to and Use of Electronic Communications Located on the Internet , E-Mail, and Bulletin Board Systems DIOG 18.6.8 DIOG 11.12 DIOG DIOG DIOG DIOG 18.6.8 18.6.8 18.6.8 18.6.8 DIOG 11.12 DIOG 18.7.2 DIOG 11.6.4 ,5 DIOG 11.6.6 DIOG 11.12 DIOG 18.7.2 DIOG 18.7.2 DIOG 18.7.2 DIOG 18.7.2 and 05/22/2008 memo DIOG 18 DIOG 18 DIOG 18 DIOG 18 DIOG 18 DIOG 18 10-9.11.1 Form 2 Report 10-9.11.2 Completion of Form 2 Report 10-9.11.3 Submissions of Form 2 Report to FBIHQ 10-9.11.4 Supplemental Form 2 Reports 10-9.12 ELSUR Indexing in Title Ill Criminal Matters 10-9.13 Marking of Recordings for Identification 10-9.14 Loan of Electron ic Surveillance Equipment to State and Local Law Enforcement Aoencies 10-9.15 Submission of Recordings 10-9.16 Transcription of Recordings 10-10 CONSENSUAL MONITORING - CRIMINAL MATTERS R-5 UNCLASS!FIED // FOUO DIOG 2 Supersession DIOG 18.5.6 and 5 DIOG 18.5.6 and 5 DIOG 18.5.6 and 5 DIOG 18.5.6 and 5 DIOG 12 DIOG 18 DIOG 18 DIOG 18.6.1 and 18.6.2 Version Dated: Occtober 15, 20 I I UNCLASSIFIED //FOUO DIOG Supersessions Part Section MIOGII Section 10 MIOGII Section 10 MIOGII Section 10 Section Title 10-10.4 Monitoring Communications with Persons Outside the United States DIOG 1 Supersession OIOG 2 Supersession DIOG 11.5 DIOG 18.6.1 and 18.6.2 10-10.5 ELSUR Indexing in Consensual Monitoring Matters DIOG 11.5 DIOG 18.6.1 and 18.6.2 DIOG 11.5 DIOG 18.6.1 and 18.6.2 DIOG 11.5 DIOG 18.6.1 and 18.6.2 DIOG 11.11 DIOG 18.6.9 DIOG 18.6.9 DIOG 18.7.2 10-10.5.1 Administration of ELS UR Records Regarding Informants and Assets 10-10.6 Use of Consensual Monitoring in National Security Matters 10-10.7 Pen Registers (Dialed Number Recorder) 10-10.7.1 Emergency Provisions 10-10.8 Electronic Tracking Devices 10-10.9 Closed Circuit Television (CCTV) (Video Only) Criminal Matters 10-10.9.1 CCTV Authorization - Criminal Matters 10-10.9.2 CCTV - ELSUR Records - Criminal Matters 10-10.9.3 CCTV (Audio and Video) - ELSUR Indexing Criminal Matters 10-10.9.4 CCTV - Preservation of the Original Tape Recordino 10-10.10 Media Recorders (Formerly Tape Recorders) 10-10.11 Radio Monitoring 10-10.11 .1 Paging Devices 10-10.11.2 Cordless Telephones and Other Types of Radio Monitorinq 10-10.11.3 Cellular Telephones 10-10.17 Trap-Trace Procedures 10-10.17.1 Emergency Provisions 10-11 FBI UNDERCOVER ACTIVITIES - CRIMINAL MATTERS 10-18 FBI PRINCIPLES AND POLICIES FOR ONLINE CRIMINAL INVESTIGATIONS 10-18.1 Online Communications 10-18.2 Monitoring Online Communications 10-18.3 Access to Stored Electronic Information 10-18.4 Record Retention and Dissemination 10-18.5 Undercover Online Communications 10-18.6 International Issues 10-19 HANDLING AND PRESERVATION OF AIRCRAFTMOUNTED VIDEO AND FORWARD-LOOKING INFRARED (FUR\ EVIDENCE MIOGII Section 10 MIOGII MIOG MIOG Section 10 Section 10 Section 10 MIOG Section 10 MIOG MIOG Section 10 Section 10 MIOG Section 10 MIOG Section 10 MIOG MIOG MIOG Section 10 Section 10 Section 10 MIOG Section 10 MIOG MIOG MIOG Section 10 Section 10 Section 10 MIOG Section 10 MIOGII Section 10 MIOGII MIOGII MIOGII MIOGII MIOGII MIOGII Section Section Section Section Section Section MIOGII Section 10 MIOG Section 10 MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG I MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section MIOG Section 11 MIOG MIOG MIOG Section 11 Section 11 Section 11 S11 Techniques and Mechanics of Arrest 11-1 ARREST TECHNIQUES 11-1.1 General 11-1.2 Initial Approach 11-1.3 Search of the Person 11-1.3.1High-Risk Search-Full-Body Search-Handcuffing 11-1.3.2 Final Search and Collection of Evidence 11-1.4 Transportation of Arrested Persons 11-1.5 Handcuffing 11-2 PROCEDURES FOR ARREST 11-2.1 Arrests and Searches 11-2.1.1 Types of Arrest Warrants 11-2.1.2 Authority to Serve Arrest Warrants 11-2.1.3 Summons and Subpoenas 11-2.1.4 Arrests Without Warrants 11-2.1 .5 Forcible Entry 11-2.1.6 Search of the Person 11-2.2.2 Property of Prisoner 11-2.2.3 Removal of Prisoner from the Custody of the U.S. Marshal 11-2.3.2 Medical Attention for Bureau Subjects 11-2.3.3 Arrest of Foreign Nationals 11-4.7.1 Juveniles MIOG Section 12 12-2.1 Deadly Force - Standards for Decisions MIOGII Section 14 14- 16.9 Fingerprinting of Juveniles by Federal Agencies under the Violent Crime Control and Law Enforcement Act of 1994 (Hereinafter . the Act) Version Dated: October 15, 2011 10 10 10 10 10 10 11 11 11 11 11 11 11 11 11 11 11 11 11 11 11 11 11 11 10-20 MAJOR CASES R-6 UNCLASSIFIED //FOUO DIOG 11.6.3 DIOG 18.6.3 DIOG 18.6.3.4-5 DIOG 18.6.3 DIOG 18.6.3 DIOG 18.6.3.7 DIOG 18.6 .1 DIOG 18.6.1 DIOG 18.6.1 DIOG 18.6.1 DIOG 11.11 DIOG 18.6.1 DIOG 18.6.9 DIOG 18.6.9 DIOG 18.6.13 DIOG Appendix L DIOG Appendix L DIOG Appendix L DIOG Appendix L DIOG 14 and Appendix L DIOG Appendix L DIOG Appendix L DIOG 11.6.6 DIOG 18.6.3.6 DIOG Appendix K - Major cases DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 18 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG 19 DIOG has pdf of policy Appendix F DIOG 19 UNCLASSIFlED // FOUO DIOG Supersessions Part Section Section Title MIOGII Section 16 16-4.1.2 Dialed Number Recorders (Pen Registers) MIOGII Section 16 16-4.1.3 Consensual Monitoring (Formerly 16-7.4.1) MIOGII MIOGII MIOGII Section 16 Section 16 Section 16 16-4.1.4 Electronic Surveillance - Title Ill 16-4.1.5 Electronic Surveillance FISA 16-4.1.6 Telephone Toll Records MIOGII Section 16 16-4.2.2 Court-Ordered Electronic Surveillance (RCU) MIOGII Section 16 16-4.2.3 Computing Time for Title Ill Electronic Surveillance (RCU) MIOGII Section 16 16-4.2.4 Emergency Electronic Surveillance (RCU) MIOGII Section 16 16-4.2.5 Roving Electronic Surveillance (RCU) MIOGII Section 16 16-4.3 Consensual Monitoring - Technical Assistance (RCU) MIOGII Section 16 16-4.4 Electronic Surveillance (ELSUR) Interceptions (RCU) MIOGII Section 16 MIOGII Section 16 MIOGII Section 16 MIOGII Section 16 MIOGII Section 16 MIOGII Section 16 DIOG 1 Supersession DIOG 2 Supersession Paragraph #1, last two sentences only. DIOG 18.6.9 Paragraphs # 3 and 4 only . DIOG 18.6 .1 DIOG 18.7.2 DIOG 18.7.3 DIOG 18 DIOG 18.6.9; 18.7.2; and 18.7.3 DIOG 18.7.2 DIOG 18.6.9; 18.7.2; and 18.7.3 DIOG 18.7.2 and 18.7.3 Paragraph # 1, first two sentences only. DIOG 18.6.1 and 18.6.2 Paragraph # 1, first sentence only. DIOG 18.7.2 and 18.7.3 16-4.4.2 Telecommunications Interceptions - Reporting Requirements (TICTU) 16-4.4.3 Telecommunications - Use of Pen Registers and Traps-Traces (TICTU) 16-4.4.4 Pen Registers and Traps-Traces Reporting Requirements (TICTU) DIOG 18.7.2 and 18.7.3 Paragraph # 1 only. DIOG 18.6.9 DIOG 18.6.9 Paragraph # 1, second , third and forth sentences onlv. DIOG 18 Paragraph # 1 only . DIOG 18 16-4.8.1 Authorized Use of Technical Devices in Conducting Physical Surveillances (TTU) 16-4.8.4 Technical Devices in Physical Surveillance Technical. Practical, and Leqal Considerations (TTU) 16-4.8.9 Authorized Use of Electronic Tracking and Locating Devices and Techniques (TTU) DIOG 18 Paragraph # 1; Paragraph # 2, third sentence; Paragraph # 4 , second sentence onlv. DIOG 18 DIOG 18.6.3 Paragraphs # 2 and 3 only. DIOG 18 DIOG 12 Paragraph # 1 only . DIOG 19 Paragraphs# 2 and 3 only . DIOG 19 Paragraph # 3, new classification 343 replaces 62. DIOG 12.5 Paragraph # 4, new classification 343 replaces 62. DIOG 12.5 DIOG Appendix M - FCRA DIOG Appendix M - FCRA 16-4.8.12 Tracking - Technical , Practical, and Legal Considerations (TTU) MIOGII Section 16 MIOGII Section 16 16-4.9 Closed Circuit Television (CCTV) (VSU) MIOGII Section 16 16-4.13.1 Availability and Control of Technical Equipment MIOGII Section 16 16-4.13.4 Loan of Electronic Surveillance Equipment MIOGII Section 21 21-12 APPREHENSION OF BUREAU FUGITIVES MIOGII Section 21 21-13.4 Policy MIOGII Section 21 21-20 FUGITIVE INVESTIGATIONS FOR OTHER FEDERAL AGENCIES MIOGII Section 21 21-20 .1 Fugitive Inquiries Abroad on Behalf of U.S. Marshals Service (USMS) MIOGII MIOGII Section 23 Section 23 MIOGII Section 23 MIOG Section 23 23-2 .3 Section 16811. Disclosures to Government Agencies DIOG Appendix M - FCRA MIOG MIOG MIOG MIOG Section Section Section Section 23-2.4 Section 16819. Disclosure to Consumers 23-2.5 Section 1681e. Compliance Procedures 23-2.6 Summary 23-2. 7 Penalties 23-2.8 Section 1681n, o, q , and r. Civil and Criminal Liability for Willful or Neqliqent Noncompliance 23-4.4 Interviews in Foreign Countries 23-4.10 Extraterritorial Investigative Activity 23-6 TITLE XI, RIGHT TO FINANCIAL PRIVACY ACT OF 1978 (RFPA) 23-6.1 Statute 23-6.2 Access to Financial Records 23-6.2.1 Intent 23-6.2.2 Methods Available to FBI 23-6.2.3 Methods Not Available to FBI 23-6.3 Definitions 23-6.3.1 Financial Institution DIOG DIOG DIOG DIOG 23 23 23 23 MIOG Section 23 MIOG MIOG Section 23 Section 23 MIOG Section 23 MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section Section Section Section Section Section Section 23 23 23 23 23 23 23 23-2 THE FAIR CREDIT REPORTING ACT 23-2.1 Section 1681a. Definitions 23-2 .2 Section 1681b. Permissible Purposes of Consumer Reoorts R-7 UNCLASSIFIED//FOUO DIOG Appendix M - FCRA Appendix Appendix Appendix Appendix MMMM- FCRA FCRA FCRA FCRA DIOG Appendix M - FCRA DIOG 11.5 DIOG 18 DIOG 18.6.1 and 18.6.2 DIOG Appendix O - RFPA DIOG Appendix DIOG Appendix DIOG Appendix DIOG Appendix DIOG Appendix DIOG Appendix DIOG Appendix OOOOOOO- RFPA RFPA RFPA RFPA RFPA RFPA RFPA Version Dated: Occtober 15, 20 I I UNCLASSJFIED // FOUO DIOG Supersessions Part MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG MIOG Section Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 Section 23 MIOGII Section 28 Section Title 23-6.3.2 Financial Record 23-6.3 .3 Government Authority 23-6.3.4 Customers Covered 23-6.3 .5 Law Enforcement Inquiry 23-6.4 Responsibility of Financial Institutions 23-6.5 Certification of Compliance 23-6.6 Methods of Access 23-6.6 .1 Customer Authorization 23-6 .6.2 Search Warrants 23-6.6 .3 Formal Written Request 23-6.6.4 Judicial Subpoena 23-6 .6.5 Grand Jury Subpoena 23-6.7 Customer Notice 23-6 .7.1 Contents of Notice 23-6.7.2 Delay of Notice 23-6.8 Customer Challenges 23-6.9 Emergency Access 23-6.10 Exceptions to RFPA 23-6.10 .1 Financial Institutions 23-6 .10.2 Corporations or Other Legal Entities 23-6.10.3 Not Identifiable with Customer 23-6 .10.4 Parties in Interest 23-6.10.5 Federal Grand Jury 23-6 .10.6 Foreign Counterintelligence 23-6.10.7 Telephone Company Toll Records 23-6 .10.8 Other 23-6.11 Dissemination of Information 23-6 .11.1 To Department of Justice 23-6.11.2 To Other Departments 23-6.12 Penalties 23-6 .12.1 Civil 23-6 . 12.2 Disciplinary Action 23-6.12.3 Other 23-6.13 Cost Reimbursement 23-6.14 Reporting Requirements 23-6.14.1 Dissemination of Information Obtained 23-6.14.2 Statistical Reporting 28-1 ATTORNEY GENERAL'S GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS 1..u::1 n RY TH!Rn Section 1 Section 1 NFIPM Section 1 NFIPM Section 2 02-1: (U) General Investigative and Administrative Activities NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM NFIPM NFIPM NFIPM NFIPM NFIPM Section Section Section Section Section Section 02-2 : (U) National Security Investigations 02-3 : (U) Summary Guidance and Applicability of Threat Assessments 02-4: (U) Summary Guidance and Applications for Preliminary lnvestiqations 02-5 : (U) Summary Guidance and Application for Full lnvestiqations (Fl) 02-6 : (U) Collection of Foreign Intelligence 02-8 : (U) Office of Origin 02-9: (U) Physical and Photographic Surveillances 02-10 : (U) Interviews in National Security Investigations 02-11: (U) Education Records (Buckley Amendment) 02-12 : (U) Polygraph Examinations NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Version Dated: October 15, 20 I I Section 2 DIOG 2 Supersession DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix O - RFPA DIOG Appendix C Di\RTIFS NFIPM NFIPM 2 2 2 2 2 2 DIOG 1 Supersession 01-2: (U) The National Security List 01-3 : (U) Acronyms 01-4: (U) File Classifications and Alpha Designations for Investigative and Administrative Activities Which Uniquely Fall Within the Purview of the FBl's National Foreign lntellioence Prooram DIOG Appendix G DIOG Appendix P CPD #00150. See RPO web-page. Appendix M for definitions : #2 , 6, 7, 10, 12, 14, 15, 18, 19, 20, 25, 26 and 27. DIOG 5, 6, 7, 8, 9 DIOG5 DIOG 6 and 18 DIOG 7, 8, 9 and 18 DIOG9 DIOG 14 DIOG 18.5.8 DIOG 18.5.6 DIOG Appendix I DIOG 18.6.11 DIOG 19.2 and Appendix G 02-14: (U) CIA Name Searches 02-15 : (U) Physical Searches in Which a Warrant is Not Required 02-16: (U) Monitoring Devices Which Do Not Impose Upon Reasonable Expectations of Privacy 02- 17: (U) National Security Letters (NSL) R-8 UNCLASSIFIED //F OUO DIOG 11.4 DIOG 18.6.12 DIOG 18.6.3 DIOG 11.9-11 .9.3 DIOG 18.6.6 UNCLASS!FIED //FOUO DIOG Supersessions Part NFIPM NFIPM Section Section 2 Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 Section Title 02-19: (U) Business Records 02-21: (U) Mail Covers 02-22: (U) Operations Conducted Outside the United States, the CIA MOU 02-23: (U) The Role of Legal Attaches in Foreign Counterintelligence, Foreign Intelligence and Counterterrorism lnvestiaations 02-24: (U) Otherwise Illegal Activities 02-25: (U) Arrests, Interdictions , Demarches and Declarations 02-29: (U) Laboratory Assistance NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 02-32: (U) Blind Faith Program NFIPM Section 2 NFIPM NFIPM Section 2 Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM NFIPM NFIPM Section 2 Section 2 Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 NFIPM Section 2 02-48: (U) Disseminating Information to the Federal Judiciary DIOG 12.4 NFIPM Section 2 DIOG 12.4 and 14.5 NFIPM Section 2 NFIPM Section 2 02-49: (U) Disseminating Information to the White House 02-50: (U) Disseminating Information to Foreign Governments and lnvestiQations at their Behest 02-51: (U) Disseminating Information to State and Local Government Aaencies NFIPM Section 2 02-52: (U) Disseminating Information to the Private Sector DIOG 14.3 (A)(6-8) NFIPM Section 2 02-54 : (U) IIIA {Integrated Intelligence Information Application) See IIIA web-page NFIPM Section 2 02-56: (U) Intelligence Oversight Board Matters NFIPM Section 2 NFIPM NFIPM NFIPM NFIPM Section Section Section Section NFIPM Section 3 NFIPM Section 3 3 3 3 3 DIOG 1 Supersession DIOG 11.3 See CPO MOU Library See 100 PG DIOG 17 DIOG 19 - Arrest Procedure See Lab web-page DIOG 19.3, 19.4 and appendix G -12.C 02-33: (U) Foreign Counterintelligence and Counterterrarism Lookout (LO) Proaram 02-34: (U) Special Surveillance Group (SSG) Program 02-35: (U) The Behavioral Analysis Program (BAP) 02-36 : (U) Investigations of Current and Former Department of State Personnel, and Diplomatic Missions Personnel Abroad 02-37: (U) Investigations of Current and Former Central lntellii:ience Aaencv Personnel 02-38: (U) Investigations of Current and Former Military and Civilian Department of Defense Personnel 02-39: (U) Investigations of Current and Former Department of EnerQVPersonnel 02-40 : (U) Investigations of Other Government Agency Personnel 02-41: (U) Investigations of White House Personnel 02-42: (U) Investigations of Presidential Appointees 02-43: (U) Investigations of Members of the Judiciary 02-44 : (U) Investigations of Members of the U.S. Congress and their Staffs 02-45: (U) Disseminating Information ta Other Agencies in the Federal Government 02-47: (U) Disseminating Information to Congressional Committees DIOG Appendix G -12.C DIOG 18.5.8 DIOG 19.4 DIOG 10, generally DIOG 10, generally DIOG 10, generally DIOG 10, generally DIOG 10 DIOG 10 DIOG 10 DIOG 10 DIOG 10 DIOG 12.4/DIOG 14 DIOG 12.4 and 14.3(A)(4) DIOG 12.4/DIOG 14.5 DIOG 12 and 14 02-57: (U) Alpha Designations 03-1: (U) Consensual Monitoring 03-2: (U) Volunteered Tape Recordings 03-4: (U) Pen Registers and Trap and Trace Devices 03-5 : (U) Unconsented Electronic Surveillance 03-6: (U) Electronic Surveillance Minimization, Logs and lndexina DIOG 11.5 DIOG 6.9(8)(7) DIOG 11.11-11.12 DIOG 11.12 03-8: (U) Operational Support to the Intelligence Community DIOG 12.5/DIOG 14.5 NFIPM Section 3 NFIPM Section 3 NFIPM Section 3 03-9: (U) Operational Technology Division {OTO) Technical Assistance Section 3-10 (U) Operational Technology Division (OTD)Technical Assistance Support to the Intelligence Communitv 03-11 : (U) Unconsented Physical Searches NFIPM Section 3 03-12 : (U) Tax Return Information NFIPM Section 3 NFIPM Section 3 03-13: (U) Searches of Mail Without Consent 03-14 : (U) Unconsented Physical Search Minimization , Logs and lndexina NFIPM Section 4 04-1: (U) The Domain Program NFIPM Section 5 05-2 : (U) Countries on the Current National Security List R-9 UNCLASSlFIED // FOUO DIOG 2 Supersession DIOG 18.6.7 DIOG 18.6.10 DIOG 4/DIOG 18.6.6 (Re:NSLs) and CPD 0188PG CPD #00150. See RPO web-pace. DIOG 18.6.1 DIOG 18.5.7 DIOG 18.6.9 DIOG 18.7.3 0137PG DIOG 12 CPD #01700 DIOG 12 (generally) DIOG 11.13 DIOG 18.7.1 Appendix N - Tax Return Info DIOG 18.7.1 DIOG 18.7.1 and SMP PG DIOG 5, type 4 assessments aenerallv. Appendix G Version Dated: Occtober 15, 2011 UNCLASSIFIED //FOUO DIOG Supersessions Part Section Section Title NFIPM Section 5 05-23: (U) Alpha Designations DIOG 1 Supersession NFIPM Section 6 06-12: (U) Alpha Designations NFIPM Section 8 08-11: (U) Alpha Designations NFIPM Section 9 09-8: (U) Alpha Designations NFIPM Section 11 11-4: (U) Alpha Designations NFIPM Section 12 12-4: (U) Alpha Designations NFIPM Section 13 13-4: (U) Alpha Designations NFIPM Section 14 14-4: (U) Alpha Designations NFIPM Section 15 15-4: (U) Alpha Designations NFIPM Section 16 16-13: (U) Alpha Designations NFIPM NFIPM Section 18 Section 18 18-3: (U) Issue Threat Preliminary Investigations 18-4: (U) Issue Threat Full Investigations NFIPM Section 18 18-6: (U) Issue Threat File Numbers 19-3: (U) Procedural Requirements in International Terrorism lnvestioations 19-4: (U) Closing International Terrorism Investigations 19-11: (U) The Behavioral Analysis Program DIOG 5, 6, 7, 8 NFIPM Section 19 NFIPM NFIPM Section 19 Section 19 NFIPM Section 19 19-13: (U) Alpha Designations NFIPM Section 20 20-9 (U) The Behavioral Analysis Program NFIPM Section 20 20-10 (U) Alpha Designations NFIPM Section 21 21-6: (U) Alpha Designations NFIPM Section 22 22-2: (U) Alpha Designations NFIPM NFIPM NFIPM Section 27 Section 27 Section 28 Confidential Human Sources Manual Confidential Human Source Validation Standards Manual Section: 28 (U) Undercover Operations (4) NFIPM Section 28 28-1: (U) UC Operations DIOG 11.12 NFIPM Section 28 28-2: (U) Group I DIOG 11.12 NFIPM Section 28 28-3: (U) Group II DIOG 11.12 DIOG 11.12 NFIPM Section 28 28-4: (U) UC Administrative Matters NFIPM Section 30 DIOG 2 Supersession CPD #00150. See RPO web-oaoe. CPD #00150 . See RPO web-oaoe. CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-paqe. CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-paqe . DIOG6 DIOG7 CPD #00150. See RPO web-paoe. DIOG 5,6,7 DIOG 5, 6, 7, 8 DIOG 19.4 CPD #00150. See RPO web-paqe. DIOG 19.4 CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-oaoe. CPD #00150. See RPO web-oaoe. CHS PM CSHVSM DIOG and NSUCOPG DIOG 18.6.3 and NSUCOPG DIOG 18.6.3 and NSUCOPG DIOG 18.6.3 and NSUCOPG DIOG 18.6.3 and NSUCOPG DIOG 19.4 MAOPI MAOPI 0-1 21-7 (6) 30-11: (U) The Behavioral Analysis Program Appendix T Memorandum of Understanding between the National Aeronautics and Soace Administration and the FBI Authority of the Director Monitoring, documenting and reviewing MAOPII 1-1 SAC and ASAC Supervisory Responsibility MAOPII 1-1.4 (# 1) Supervision of Cases MAOPII 1-1.4 (# 2 and# 3 af) Supervisory File Reviews MAOPII 1-1.5.1 Official Channels Paragraph (5) b only superseded by CPD 01520 FBI Policy Cycle Directive. MAOPII 1-3.5 Designation of Senior Resident Agent and Alternate Second and third sentences only - DIOG 3.4.C and succession and delegation oolicv ? MAOPII 1-3.6 Reporting to HQ City First and second sentence file reviews every 90 days: DIOG 3.4.D MAPT Version Dated: October 15, 2011 R-10 UNCLASSIFIED//FOUO CPO MOU Library DIOG 3.2.1 DIOG 3.4.D Paragraphs# 2 and # 5. DIOG 3.4.C and Succession and delegation oolicv Paragraph# 1 - DIOG 14 Paragraph # 2 and # 3 (a-f) # 2 Supervisory File reviews and # 3 PSAs. DIOG 3.4.D Part MAOP 11 1-3.13 2 '11 MAOP 1-3.13.3 a MAOP Section Tiiie Section DIOG 1 Supersession s :.ase"""'e-.,--ews -e,ung MAOP MAOP MAOP 2-3 2-3 .1 2-3 .2 2-3 .3 2-3 .3.1 2-3 .3.2 MAOP MAOP MAOP 2-3.4 2-3 .4.1 2-3.4 .2 MAOP 2-3 .5 MAOP 2-3 .6 Index Data Identifying Data Descriptive Data Indexing Requirements of General lndicies Versus Automated lnvestiaative Support Svstems Responsibilities MAOPI 2-3 .6.1 Special Agent MAOP MAOP MAOP MAOP 2-3.6.2 2-4 2-4.1 2-4 .1.1 Supervisory Special Agent Responsibility Management of Files Investigative Files MAOP 2-4.1.2 Zero Files MAOP MAOP 2-4 .1.3 2-4.1.4 Double Zero Files Dead Files - No Pending Investigation MAOP 2-4.1 .5 Control Files MAOP MAOP MAOP MAOP MAOP 2-4.2 2-4.2.1 2-4.3.6 2-4.3.7 2-5 Administrative Files Noninvestigative Files MAOP MAOP Purpose Genera l Policy Indexing Criteria and Guidelines Mandatory Indexing Discretionary Indexing Serializing Consolidation of Files Reclassification of Files Case Management - Field Offices DIOG 2 Supersession Paragraph (1)- DIOG 3.4.C and succession and ? deleaation oolicv All (paragraphs 1-6) - DIOG 3.4.D DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG DIOG DIOG DIOG 14 14 14 14 DIOG 14 DIOG 3 and 14 first introductory Paragraph onlv. DIOG 3 DIOG 14 DIOG 14 DIOG 14 DIOG 14 Paragraph (2) only. DIOG 14 DIOG 14 DIOG 14 Paragraph (1) first four sentences onlv. DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 14 MAOPII 2-5 .1 Opening Cases Paragraphs 1, 2, 3, 4 (initial paragraph only before subletters) , 4d , 4e, 41, and 5 (first sentence only) . DIOG various sections MAOPII 2-5.1.1 Leads Paragraph (2), delete "Discretionary Action" leads in first sentence only; and delete 2b. DIOG 14 MAOP MAOP 2-5 .2 2-5.2.1 Status of Cases Pending Case MAOP 2-5 .2.2 Pending Inactive MAOP MAOP MAOP 2-5.2.3 2-5 .2.4 2-5.2.5 Referred Upon Completion to the Office of Origin (RUC) Closed MAOP II 3-1 MAOPII 3-1.1 Unaddressed Work FBI Classifications/Sub-classifications Groupings and Program FBI Classifications and Subdivided Classifications MAOPII 3-3 (3c ) Task Force Officers (defined ) MAOPII 3-3.2 fl) Special TURK Recording Procedures (1) Major Cases MAOP II 3-4 .5 9 a-g Case Count Information(# 9 re: closings ) MAOP II 3-4 6 Reclassifying Cases and Error Correction R-11 UNC LAS SIFIED //FO UO DIOG 14 DIOG 14 Paragraphs 2, 2a-c , and 3 onlv. DIOG 14 DIOG 14 DIOG 6.11, 7.11, 8.8, 9.12 DIOG 14 CPD 00150. RPO/RAU is now responsible for this area by EC 66F-HQ1079817 serial 705. Link to RPO web-site. Supersede section 3.1 and all subparts. only 620; 62E replaced with new 343 classification. 163 M-U classification added. DIOG 12 DIOG 3.3.2 #1a-g. DIOG Appendix JMajor Cases Paragraph # 9 a-g was supersede by DIOG 6.11; 7.11: 8.8: and 9.12. DIOG 6.11.C ; 7.11.C; 8.8.C: and 9.12.C Version Dated: Occtober 15, 2011 UNCLASSIFIED // FOUO DIOG Supersessions Part Section Section Title DIOG 1 Supersession MAOPII 3-4.8 Criminal Preliminary Inquires MAOPII MAOPII 3-4.10 (1) 3-4.10 (2) Spin-of! Cases (paragraph #1 - defined) Spin-of! Cases (paragraph #2 - who can authorize) MAOPII 3-4.11(1) Control Files (Paragraph #1 - defined) MAOPII 3-4.11 (2) Control Files (Paragraph #2 - leads) MAOPII 3-4.11 (3) Control Files (paragraph #3 , third sentence only) MAOPII 9 Dissemination of Information MAOPII 9-3 Information to Be Disseminated MAOPII 9-3 (paragraph 1) MAOPII 9-3 (paragraph 2) DIOG 2 Supersession Paragraph #1 only. DIOG Section 6.7 - PIS are authorized for 6 months; extension authorized for 6 additional months by SAC; :anrl FRIHO sr. DIOG 14 DIOG 5, 6, 7, 8, and 9. superseded paragraph #1, defined in DIOG 14 superseded paragraph # 2, DIOG 14 delete third sentence only, DIOG 14 DIOG 14.3 (generally) DIOG 14.3, 14.4, 14.5 and 14.6 DIOG 14.3.A and B AG Memo 9/21/2001 - "Disseminating Information to Enhance Public Safetv and National Securitv." DIOG 14 DIOG 14.3.A.5 MAOPII 9-3 (paragraph 3) MAOPII 9-3.1 Dissemination to State and Local Criminal Justice and Noncriminal Justice Aqencies DIOG 14.3.A.3 MAOPII 9-3.1.1 Dissemination to State and Local Criminal Justice Agencies DIOG 14.3 MAOPII 9-3.2 MAOP MAOP MAOP MAOP MAOP MAOP I 9-3.4.2 9-3.4 .3 9-3.4.4 9-3.5 9-3.5.3 9-3 .5.4 Information Totally Within Jurisdiction of Other Federal Aoencies Information within FBI Jurisdiction and of interest to another Federal Aoencv Interested Agency Outside a Field Office Territory Interested Agency Within a Field Office's Territory Reporting Information Furnished Method of Dissemination to Outside Agencies Oral Dissemination to Outside Agencies Accounting of Dissemination MAOPII 9-4.2.6 Investigative Activity in Congressional Offices MAOPII 9-4.2.9 Dissemination to the White House Complex MAOPII 9-6 Major Cases - Dissemination of Information MAOPII 9-7 MAOPII 9-7.1 MAOP II 9-7.2 Threat to Life - Dissemination of Information Information Concerning Threats Against the President and Other Desionated Officials Information Concerning Threats , Possible Violence or Demonstrations Against Foreign Establishments or Officials in the US Information Received Through other Than Technical Surveillance Information Received Through Technical Surveillance Miscellaneous Replies to Foreign Police and Intelligence Contacts Letterhead Memoranda Prepared by Bureau's Foreign Offices Dissemination of Classified Information Dissemination of Grand Jury Material Dissemination of Title XI, Right to Financial Privacy Act of 1978 Dissemination By Field Intelligence Groups MAOP 9-3.3 DIOG 14.4.B DIOG 3.4 .E DIOG 12.4 DIOG 12.4 DIOG 12.4 and 12.5 DIOG 12.4 and 12.5 DIOG 12 and 14, generally DIOG 12.4 and 12.5 Interview or CHS - DIOG 18.5.6 and CHSPM Interview or CHS - DIOG 18.5.6. Paragraph (2) Superseded by AGG-Dom , DIOG and AG Memo WH C:onll'lr.l~ MAOP 9-7.2.1 MAOP MAOP MAOP 9-7.2.2 9-7 .2.3 9-8 MAOP 9-8.1 MAOP MAOP 9-8.2 9-9 MAOP 9-10 MAOP 9-13 MAOP II 10-9 MAOPII 10-10.9.1 MAOPII MAOPII 10-12 10-16.2 Version Dated: October 15, 2011 General Rules Regarding Recording and Notification of Investigations Approval by individuals Delegated to Act on Behalf of Higher Bureau Officials Notes made During Investigations - Interviews Office of Origin R-12 UNCLASSIFIED//FOUO DIOG Appendix K - Major Cases DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 14 DIOG 12 and 14 DIOG 18.6.5 DIOG Appendix O - RFPA DIOG 14 Supersede Paragraphs # 1a-c ; 2a-c ; 5; 6; 7; 9; 1Oa-c: 11-16; and 23-24. DIOG, various sections . DIOG 3.4.C DIOG 3 and 14 DIOG 14 UNCLASSIFIED // FOUO DJOG Supersessions Part Section Section Title DIOG 1 Supersession DJOG 2 Supersession Remove second to last and last sentence only . Remove citation to MAOP at the end of Paragraph # 6 and add citation "See DIOG 3.4 .D" MAOP II 21-7 (6) Monitoring , Documenting and Reviewing NA EC NIA EC NIA MIOGII EC 10-10.17 .1 319T-HQ-A1487667-INSD; ser. 247 To Provide Guidance on Least Intrusive Techniques in National Security an Criminal Investigations - OGC EC 1319X-HO-A1487720-0GC Serial ), 1212012007 Mail Cover Cites - EC dated 1212212004 FD-670 , Consensual Monitoring - Telephone Checklist NIA form FD-671, Consensual Monitoring - Non-telephone Checklist DIOG 11.5 DIOG 18.6.1 NIA EC DIOG 11.12 DIOG 18.7.2-3 NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC NIA EC LHSA 7-4 .1(7) NIA EC NIA EC NIA EC NIA EC Electronic Surveillance - EC dated 1212012007 Civil Liberties and Privacy EC issued bv OGC dated 311912004 Civil Liberties and Privacy EC issued by OGC dated 91812005 Least Intrusive Techniques in National Security and Criminal Investigations - EC issued by OGC on 1212012007, file number 319X-HQ-A1487720-0GCProtection of First Amendment Rights EC issued by OGG dated 311912004 EC issued by CTD dated 0910112004 EC issued bv OGG dated 1210512003 FBI National Collection Requirements EC issued by DO dated 0113012003 Retention and Dissemination of Privacy Act Records EC issued by OGG dated 0311912004 Authorized Investigative Methods in Assessments ECs issued by OGC dated 0311912004and 911812005 Authorized Investigative Methods in Full Investigations EC issued by OGG dated 1012912003 Federal Grand Jury Subpoena EC issued by OGG dated 0610112007 Administrative Subpoena EC issued by CID dated 0610612001 Voluntary Disclosure of Non-Content Customer Records Definition of Investigative Method EC issued by OGG dated 1011412003 FISA Review Board for RISA Renewals EC issued by Director's Office dated 02/0612006 Assistance to Other Agencies EC Issued by OGC dated 121512003 Emergency Disclosure Provision for Information from Service Providers Under 18 U.S.C. Section 2702(b) - EC issued by OGG 0812512005, file number 66F-HQ-1085159 and 66F-HQ-C1364260 Consolidated Legal Handbook for Special Agents Section 74 .1(7) into Interview Section of DIOG Electronic Recording of Confessions and Witness Interviews -EC issued by OGC on 0312312006,file number 66F-HQ1233488-3 and 66F-HQ-C1384970. FBI Mandated File Review Process - EC issued by INSD on 0710712010. file number 319T-HQ-A1487667-INSD-247 Electronic Recording of Confessions and Witness Interviews - EC issued by OGC on 0312312006,file numbers 66F-HQC1384970 and 66F-HQ-1283488 Procedural and Operational Issuance - Guidance for Legislative Corruption - EC issued by CID on 0810812006, file number 319W-HQ-A1487699-CID-253 NIA EAU EAP PG FBI Employee Assistance Unit, Employee Assistance Program PG , delete definition of task force officer on page 1 DIOG 3 NIA RAP Tool User Guide v1 .1 Resource Allocation Planning (RAP) Tool , User Guide v1 .1 delete definit ion of task force officer and task force member on n:an" 1 DIOG 3 R-13 UNCLASSrFIED //FOUO 34.D DIOG 4 , 4.1, 11.1.1 DIOG 4,4.4 , 18.1.1-2 DIOG 11.3 DIOG 11.5 DIOG 18.6.10 DIOG 18.6.1 DIOG 4.1, 6.3, 8.3, 9.3, 15.3 DIOG 4 .1, 7.3 DIOG 4, 4.4, 18.1.1-2 DIOG 4.2 DIOG 5.11 DIOG 5.13 DIOG 18.3, 18.5 DIOG 18.3, 18.7 DIOG 18.5.9, 18.6.5 DIOG 18.6.4 DIOG 18.6.8 DIOG 18.6.9.3 DIOG 18.7.3.1.5.3 DIOG 12 DIOG 18 DIOG 18 DIOG 18 DIOG3 DIOG 18 DIOG 18 Version Dated: Occtober 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide APPENDIXS: (U) LISTSOF INVESTIGATIVEMETHODS S.1 INVESTIGATIVEMETHODS LISTED BY NAME (ALPHABETIZED) (U) Administrative subpoenas. (Section 18.6.4) (U) CHS use and recruitment. (Section 18.5.5) (U) Closed-circuit television/video surveillance, direction finders , and other monitoring devices . (Section 18.6.3) (U) Consensual monitoring of communications, including electronic communications. (Section 18.6.1) (U) Electronic surveillance - FISA and FISA Title VII (acquisition of foreign intelligence information) . (Section 18.7.3) (U) Electronic surveillance - Title III . (Section 18. 7 .2) (U) FISA Order for business records. (Section 18.6.7) (U) Grand jury subpoenas. (Section 18.6.5) (U) Grand jury subpoenas - only for telephone or electronic mail subscriber information in Type 1 & 2 Assessments. (Section 18.5.9) (U) Information voluntarily provided by governmental or private entities. (Section 18.5.7) (U) Intercepting the communications of a computer trespasser. (Section 18.6.2) (U) Interview or request information from the public or private entities. (Section 18.5.6) (U) Mail covers . (Section 18.6.10) (U) National Security Letters. (Section 18.6.6 ) (U) On-line services and resources. (Section 18.5.4) (U) Pen registers and trap /trace devices. (Section 18.6.9) (U) Physical Surveillance (not requiring a court order). (Section 18.5.8) (U) Polygraph examinations. (Section 18.6.11 ) (U) Public information. (Section 18.5.1) (U) Records or information - FBI and DOJ. (Section 18.5.2) (U) Records or information - Other federal , state , local , tribal , or foreign government agency . (Section 18.5.3) (U) Searches - with a warrant or court order. (Section 18.7 .1) S-1 UNCLASSIFIED - FOR OFFICIAL USE ONLY Version Dated. October 15, 2011 UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide (U) Stored wire and electronic communications and transactional records. (Section 18.6.8) (U) Trash Covers (Searches that do not require a warrant or court order). (Section 18.6.12) (U) Undercover Operations (Section 18.6.13) S.2 INVESTIGATIVEMETHODS LISTED BY ORDERIN DIOG SECTION18 18.5.1 (U) Public information 18.5.2 (U) Records or information - FBI and DOJ. 18.5 .3 (U) Records or information - Other federal, state, local, tribal, or foreign government agency. 18.5.4 (U) On-line services and resources. 18.5.5 (U) CHS use and recruitment. 18.5.6 (U) Interview or request information from the public or private entities. 18.5. 7 (U) Information voluntarily provided by governmental or private entities. 18.5.8 (U) Physical Surveillance (not requiring a court order). 18.5.9 (U) Grand jury subpoenas - only for telephone or electronic mail subscriber information. 18.6.1 (U) Consensual monitoring of communications, including electronic communications. 18.6.2 (U) Intercepting the communications of a computer trespasser. 18.6.3 (U) Closed-circuit television/video surveillance, direction finders, and other monitoring devices. 18.6.4 (U) Administrative subpoenas. 18.6.5 (U) Grand jury subpoenas. 18.6.6 (U) National Security Letters. 18.6. 7 (U) FISA Order for business records. 18.6.8 (U) Stored wire and electronic communications and transactional records. 18.6.9 (U) Pen registers and trap/trace devices. 18.6.10 (U) Mail covers. 18.6.11 (U) Polygraph examinations. 18.6.12 (U) Trash Covers (Searches that do not require a warrant or court order). 18.6.13 (U) Undercover operations. Version Dated: October 15 201 l S-2 UNCLASSIFIED - FOR OFFICIAL USE ONLY UNCLASSIFIED - FOR OFFICIAL USE ONLY Domestic Investigations and Operations Guide 18.7.1 (U) Searches - with a warrant or court order. 18.7 .2 (U) Electronic surveillance - Title III 18.7.3 (U) Electronic surveillance - FISA and FISA Title VII (acquisition of foreign intelligence information). S-3 UNCLASSIFIED - FOR OFFICIAL USE ONLY Vers.on Dated: October 15, 2011 DOMESTIC INVESTIGATIONS AND OPERATIONS GUIDE INVESTIGATIVE METHODS AND APPROVAL CHARTS OCTOBER 16, 2013 Undisclosed Participation (UDP) Approval Levels for Assessments and Predicated Investigations* (Dated10/16/2o13) (All CHS tasking must be in conformity with FBI CHS policy) Non-Sensitive UDP Using a CHS or uce to: A intended or likely to in?uence the activities of an organization Intended or liker to influencethe CHS or UCE Status . . exercrse of Amendment rights by Obtain information Sensitive UDP Using a CHS or UCE to: Intended or likely to in?uence the activities of an organization or the exercise of 1st Amendment rights by members of the organization CHS already a member of the organization and is tasked to obtain information Assessments: SSA Approval Assessments: Not required; UCE role not permitted. Predicated Investigations: OGC revrew. If OGC determines participation: (1) will or is likely to in?uence exercise of 1st Amendment rights of members of the organization, EAD or higher approval, and notice to SORC required; or (2) will not likely in?uence the exercise of First Amendment rights, AD may approve, with notice to SORC. UCO policy may apply. Assessments: Not permitted. Predicated Investigations: No supervisory approval required for CHS activity. Employee's role requires SSA approval. UCE role requires SSA approval or higher. UCO policy may apply. Predicated Investigations: CDC review and SAC approval. UCO CHS or UCE not currently a may apply' member; tasked to join/ participate and obtain information members of the organization Assessments: SSA approval. If obtaining information not generally known to regular members ("insider information"), CDC review and SAC approval. UCE role not permitted. Assessments: Not permitted. Predicated Investigations: OGC review. If OGC determines participation: (1) will or is likely to in?uence the activities of the organizatiOn, but Predicated Investigations: SSA approval. not likely in?uence the exercise of First Amendment rights, AD may approve with notice to SORC (2) will or is likely to in?uence exercise of 1st Amendment rights by members of the organization, OGC and SORC review and Director approval; or; (3) will not likely in?uence either the activities of the organization nor the exercise of 1st Amendment rights, UDP request returned to Field Of?ce for requisite UDP approval. I.) Assessments: CDC review, SAC approval, and notice to SORC. If obtaining information not generally known to regular members ("insider information"), OGC review, AD approval, and notice to SORC. UCE role not permitted. Predicated Investigations: CDC review, SAC approval, and notice to SORC. UCO policy may apply. Special Rules for Aten?iea?eiisieya?tted? and. Other Definitions Notes: ?Definition of Sensitive UDP: Sensitive UDP is UDP in the activity of a political, religious. or media organization, an academic institution, an organization having an academic nexus, or an organization whose primary purpose is the advocacy of social or political causes or the education ofthe public about such causes. agent overtly attend, does require approval, In Assessments: a) Reli lous Services? i. Tasking a CHS to attend: SAC approval (non-delegable); Employee?s overt attendance: SSA approval; UCE attendance: not allowed. b) other Sensitive Organizations - i. Tasking a CHS to attend (other than a public gathering ol a substantial number of nonsmembers): SSA approval; ii. Employees overt attendance: no approval required; In Predicated Investigations: a) Religious Services - i. Tasking a CHS to attend: SSA approval; Employee's overt attendance: SSA approval . UCE attendance: see UCO policy b) Other Sensitive Organizations - no approvals required. 2, Tasking a CHS to attend or an employee's overt attendance of more than 5 times in any of these organizations will be treated as "participation" for purposes of the UDP policy. 1, Information is voluntarily provided by a OHS who is already a member of an organization orjoins on his or her own behalf (not tasked). 2. Information is derived from attending events or activrties that are open to the general public, and obtained on the same terms and conditions as members of the general public. 3. Organization is openly acknowledged by a foreign government to be directed or operated by that foreign government. 4. Organization is reasonably believed to be acting on behalf of a foreign power and its US. based membership consists primarily of non-US Persons. 5. Organization was not formed for a lawful purpose or its primary purpose is to engage in unlawful activities. - Methods of Analysis for UDP: 1. Is there an Organization? 2. Is the Organization legitimate or notforeign Organization? 4. Is it Non-sensitive or Sensitive 5. Assessment or Predicated Investigation? 6. Has participation been recognized by an appropriate of?cial? 7. Is CHS already member/participant or tasked to join/participate? 8. What is the purpose: tasked to obtain into in?uence activities in?uence 1st Amend attend religious service? 10/15/2011 Field Office Investigations Chart (Datad10l16l2013) rivein on Pumose? Duration Documentation 0min! Approval ios ng Approve us ?ne on ow SIM Res sibie Entl Noti?cation Seek information. proactively or in response to investigative leads, relating to activities or the Type 1 2 involvement or role of individuals. Assessments groups. or organizations in those activ es constituting violations of federal criminal law or threats to the national security or Guardian as soon as practical. When not As long as necessary to converted to Fredicated achieve purpose and investigation. it must be objective; No time limit. serialized to zero sub- assessment ?l . already open matter; unaddressed work file CDC review. SAC approv as soon as No notice required Every 30 days practicable. but not more than five (5) business days F0 Investigative squad or No notice to FBIHQ or Do.) required when FBIHQ operational div' on opening or closing Any employee can open; SSA or SIA assigns Identify. obtain and ut' 'ze information Opened with EC: FIG - 801l- about actual or potential national As long as necessary to 807i or 815i classification; F0 security threats or federal crim al achieve purpose and squad or FBIHQ operational activities. or the vulnera ty to such objective: No time limit Investigative ?le threats or acti es classi?cation Obtain and retain information to inform As long as necessary to or fac ate inte ence analysis and achieve purpose and ?ct? ii 't CDC review. SAC approval; as soon as FIG. DI or Di entity. F0 practicabl . but not more than five (5) investigative squad. FBIHQ business days operational di sion Prior written SSA or SIA approval. Closed with an EC approved by Every 90 days; if probationary (No oral approval) SSA or SIA employee. every 60 days No notice to FBIHQ or DOJ required when opening or closing Type 3 Assessment CDC re w. SAC approval; as soon as practicable. but not more than five (5) business days DI. FIGs. or FBIHQ Opns No notice to FBIHQ or DOJ required when Division lntel Component opening or closing Type 4 Assessment Opened with EC only by Prior written SSA (FIG) or SIA Closed with an EC approved by Every 90 days; if probationary 818A-F or 815H classi?cation approval. (No oral approval) SSA (FIG) or SIA employee. every 60 days For SAs. prior written approval from SSA. For lAs. prior written approval from both the SIA and the SSA of the investigative or HUMINT squad that potentially recruit the individual. (No oral approval) Seek information to identify potential Type 5 human sources. assess their Assessment suita I ity. or value of indiv duals as human sources F0: SA or iA assigned to investigative squad or the FBIHQ: IA As long as necessary to Opened with EC or successor achieve purpose and Delta form: 801R-807R or objective; No time limit 815R classi?cation Closed with an EC (or successor form in DELTA) by or SIA who were required to open Every 90 days; If probationary See for sensitive potential CHS employee. every 60 days or Group No notice to FBIHQ or DOJ required when opening or closing Seek information. proactively or in . . response to investigative leads. As long as necessary to muggiggzi??ga??j relating to matters of foreign achieve purpose and incidental causation 815' intell gence interest responsive to objective; No time limit c'assmcauon forebn intelligence requirements. ssessmen 5 Closed or converted to a Full CDC review. SAC approval. and the investigation with an EC approved Every 90 days; it probationary responsible Di so as soon as FIG: SA or lA (investigative Notice to Di with request to open EC: No notice by the SSA (FIG) or SIA. and the en'ployee. every 60 days practicable. but not more than five (5) squad can support) required to DOJ of opening or closing responsible Dl UC business days Prior written SSA or SIA. and UC Approval. (No oral approval) Type 6 Assessment Wi no on ua ianis mo lle oaccommo ane I . :0 . 0 . investigation Predicaticn nitration ocumenimlon Approval to Open losing Approval Filo Rlvlow SIM Responsible Entity Notification ?ew SA a I I I Si: QSEdiczade. bu? r2223): Opened or Closed by PC - no notice to FBIHO extension With SAC approva Prior written SSA Approval. Oral ?ve (5) business days. written notice to (PCs may require noti USAO or DOJ. delegable to ASAC. Additional EC SSA approval permitted. but must SSA approval. Closing a SIM Every 90 days; If probationary . . UC . . Squad unless Pi is a SIM, If SIM: FO noti?es Unit and Section; and USAO, ifappropriate. 6 month extensions by be documented within 5 business requires SAC approval employee. every 60 days calendar ays' or Opened or Closed by - notice to applicable FOs. DIOG 6.7.1.1 and 6.122 ?Information or an allegation" 6 months one 6 month in icating the existence of federal criminal activity or a threat to national security (or protect against such activity or threat) See DIOG 6.5 Preliminary investigation (Pl) 5 responsible FBIHO Section days. See DIOG 3.4.2.2 and 6.7.1 must notify USAO Unless Chief (for 90001 cause inappropriate. FBIHO must notify DOJ Opened by F0 - notice to responsible FBIHQ I Unit within 15 calendar days; opened by FBIHQ ?ArticUlable factUal basis" that CDC REVIEW and SAC as notice to applicable FO within 15 calendar days. reasonably indicates the existence of 500" as Pladicab?ei bu? "01 more than National security investigations of USPERS federal criminal activity or a threat to Prior written SSA Approval. Oral ?ve (5) business days; written notice to requires FBIHQ notice to Within 30 national security (or protect against . . SSA approval permitted, but must SSA approval. Closing a SIM Every 90 days; If probationary the appropriate FBIHQ operational UC . . calendar da 5_ Closed F0 no notice to such activity or threat) or obtain facmal madman?" commas EC be documented within 5 business requires SAC approval employee. every 60 days and SC within 15 calendar days. F0 or Invest'gat've Squad FBIHQ requrre 5 may requr foreign inte ence responsrve to a days. See 0106 34.2.2 and 7.7.1 FBIHQ must USAO unless notice). unless it is a SIM. If SIM. notice to PFI Collection Requirement. See inappropriate. FBIHQ must notify DOJ operational FBIHQ Unit and Secti n. and to the DIOG 7.5 30 calendar days USAO. if appropriate Opened or Closed by FBIHO - notice to applicable FOs. See 0106 Notime as long as Full Investigation CDC Review. SAC and SC Approval. as soon as practicable. but not more than ?ve (5) business days; written Every 90 days; if probationary notice to the appropriate employee. every 60 days operational U0 and SC within 15 calendar days. F0 or notice to USAO. if appropriate. must notify DOJ within 30 calendar days CDC Review. SSA. SAC and DISC approval. as soon as practicable. but not more than ?ve (5) business days. FIG DI must notify within 30 calendar days section receives notice with the opening EC. Responsible FBIHQ section must notify investigative Squad DOJ (NSD or OCRS) within 30 calendar days. if SIM: notice must be given to USAO. ifappropriate "Articuiable factual basis? for the Prior written FBIHQ SC approval. investigation that reasonably indicates as long as Oral SC approval permitted. but the group or organization is or may be factual predication continues EC must be documented within 5 SAC and appropriate SC approval engaged in Racketeering. IT. or DT to exist business days. See 3.4.2.2 activ ies. See DIOG 8.4 and 8.6.1 Enterprise Full investigation No time limit; until the PFI Prior written approval from the Responsible DI Unit; Closing a SIM Collection Requirement is EC responsible Dl UC (oral approval requires SAC (if opened in the ?eld) satis?ed not permitted) and responsible DI SC approval PF Full investigation Every 90 days; If probationary employee, every 60 days DI must notify within 30 calendar days Collection Requirement 10/15/2011 Authorized investigative Method 3- DIOG Reference Activities permitted prior to Assessment Assessmenu investigative Methods Approval Investigations and Full lnvuttgaltons Posldvo Foreign Intelligence DIOG Reference 18.5.1 8. 13.5.5: SSA approval is not required tor a CHS to attend a sensitive organization?s public gathering/rally that includes a substantial number allndividuais whom not members 01 the organization. 18.5. 13.6 and 18.7: Consent Searches are authorized in Assessments. as well as in Predicated Investigations. Public inlormalion ?mm Rm n? ?Wm? No Approval Required No Arapmval Required No Approval Required Tasking a CH5 to attend a rel ious service SAC Approval ?rionrdelogablo) SSA Approval SSA Approval 13.5.1? Tasking a CHS to attend other sensitive ranizations See Note SSA Approval No Approval Required No Approval Required 18.51 Employee overt attendance at a religious service Not Permitted SSA Approval SSA Approval SSA Approval Emrlo ee overt attendance at other sensitive or- aniza ions No i - - oval Re-uired No Approval Required No Approval Required UCE to attend religious service Not Permitted SSA Approval (may require UCO or UDP approvals) SSA Approval (may requ're UCO or UDP approvals) . . No Approval Required - 113d be authorized . . 18.5.2 Records or inlonnatlon - FBI and DOJ I clam? My mm" No Approval Required N0 Requ'fed "0 Re?llde 135-2 Records or inlorrnation - Other federal, state. local, tribal. or foreign No Approval Required - Need authorized . . 13.5.3 governmem agency ?mum!? mm a No Approval rsqutred. mloos required by MOU or other agreement. No Approval required. unless required by MOU or other agreomoris No Approval required, unless required by MOU or other agreement: 13.5.3 18.5.4 On-line servuzes and resources No m? No Approval Required No Approval Required No Approval Required 13.54 CHS use and recruitment Na Approval Required (utilize Delta) No Approval Required (utilize Delta) No Approval Required Delta) Tasking 3 CH5 to attend a religious service SAC Approval (non-delegable) SSA Approval SSA Approval 18 5 5, Taskin a CHS to attend other sensitive or anizations See Note SSA Approval No Approval Required No Approval Required 18 is Employee overt attendance at a religious service SSA Approval SSA Approval SSA Approval Emplo ee overt attendance at other sensitive or anizations No Ap roval Re uired N0 RquEd No Approval Required UCE to attend rel ions service . - .. . SSA Approval (may require UCO or UDP approvals) SSA Approval (may require UCO or UDP approvals) Permitted only when conducting a volu'rtary - clarifying interviewer orthu No Approval Required except for: contact with represented persons: members No ReQUiied 701': W?a? Wilt! repreienlad Perla?: No Approval Required except tor. contact with represented persons: 13.5.6 Interview or request information train the public or private entities itmld'iodtho lnlormation- of Congress or their starts; White House personne members of the news members 0' Congress orthelr staffs: White House personnel: members of members of Congress or their stairs; White House personnel: members at 18.56 Tied to acthodzod almlnal orth security media; operational terrorists: or recording interviews the new: media: operational terrorists: or recording Interviews the news media: operational terrorists; or recording Interview- Permitted mileprocoaing a complaint, . . . . . observation, or information, and the person or . . . 18.5.7 Information voluntarily proVIded by governmental or private entities "my I to a No Approval Requtred No Approval Required No Approval Required 13.5.7 criminalch sical surveillance . . . . . . . . Squad Approval tor 72-hour period. renewable tor 72-hour period: No Approval required, no time period limitation No Approval required. no time period limitation 13.5.8 - - - - Approval tar 72.0mm period_ remmbte [or national 72-hour period. ASAC Approval. no time period limitation ASAC Approval, no time period limitation 13.5.3 Aviation Resources ASAC Approval tor 72?hour period. renewable tor additional 72-hour periods ASAC Approval. no time period limitation ASAC Approval. no lime Period Ii italic" 13.5.9 .G'm . - A -. us Attorneys O?lce Approval (Type 1 a 2 Assessments Only) NIA 13.5.9 Generally. CDC or 066 Review and SSA Approval Generally. CDC or OGC Review and SSA Approval; 19 1 Consensual Monitoring oi Communications, including Electronic . I . ii OIA - SAC (may be delegated to ASAC or SSA): it OIA- SAC (may be delegated to ASAC or 1a 6 1 - Communications r? if one~party consent prohibited In toreign country - FBIHQ and it one-party consent prohibited in loroipn country - and DOJ: it sensitive monitoring circumstance FBIHQ and DOJ it sensitive monitoring circumstance - FBIHQ and DOJ 13.6.2 intercepting the Communications oi a Computer Trespasser a - . CDC or 060 Review. SSA Approval CDC or 060 Review. SSA Approval 18.6.2 18 6 a Closed-circuit television/video surveillance. direction iinders. and other g. . lino REP: CDC or 060 Review. SSA Approval: lino REP: CDC or 060 Review. SSA Approval: 18 3 monitoring daylces Il REF exists - Court Order/Warrant re titled: CIA coordinate wl'l'l' A it REP exists - Court Order re uired; CIA coordinate wll'r A Subpoenas: Drugs SSA OCIDP or SSRA Approval ADIC, SAC. ASAC. SSRA . SSA oi squad. SC ol and 13.6.4 Administrative Subpoenas: Sexual Exploitation . . 1 UC of and SSA: In and those - - 18.8.4 assigned to NCMEC Subpoenas: Healthcare Fraud AUSA Approval . Grand jury subpoenas lortelephone or electronic mail subscriber Information A SA A . 13.6.5 Grand jury subpoenas - - only (In Type 1 o, 2 human") PPmVal - 18.8.5 Field Of?ce: CDC Review. ADIC or SAC Approval. FBIHO: DD or EAD or 193.3 National Security Letter . - . . A . Associate EAD tor N55 or A0: and all DAD13.6.6 lortha NSLB 135,7 Fisrt Order tor Business Records . - . . - - . A royals establist in Permitted onl tor - rovals established in FISAMS 13.6.7 Legal or Admiristrative process is required depending on type of 18.6.3 Stored Mre or electronic communications and transactional records . - - - - - Information sought: voluntary emergency disclouures require ASAC or SO - - - 18.6.3 Approval - . . . Crimina: Court anterior 60 day periods . 13.6.8 Pen Registers and Trap/Trace Devwes - I Mammal sec? FISC order '0'de pe?ods Only Available tor Non USPER by Order 18.6.9 SSA Approval 18.6.10 Mail covers - - - National Security: ADIC or SAC Approval with CDC Review 133-10 (At FBIHQ: EADINSB) 18.6.11 Polygraph - - - Permitted only In Type 5 Assessments with SSA Approval SSA Arturo/a! SSA Appmval 13.6.11 135,12 Trash Covers (Searches warm." a warm. or mun omen . - ?mm? 5 ?semim'lxlg Rm? 55" SSA Approval review it REP in doubt) SSA Approval review it REP In doubt) 13.5.12 For UCA - no Approval required, except in criminal cases when the UCE For UCA - no Approval required, except in criminal cases when the UCE meets with the subject - SSA Approv l? meets with the subject - SSA Approva Undercover Operations. Group - - i For U00: CDC Review and SAC Approv-1 axe-m: mm vs clroumatancea For uco: CDC Review and SAC Approval except: sensitive 13.5.13 UCO - Fall-l0 Approval; UCO in HM cases - FBIHQ Approval; and NS circumstances UCO - FBIHQ Approval; UCO in HM cases - 13.6.13 FBIHQ reviews UACB Approval; and NS UCOs - FBIHQ reviews UACB t, . in addition to those Approvals in UCO Group it above: AD and CUROC or In addition to those Approvals in UCO Group II above: AD and CUROC or emve? Pe?a mu" UCRC (EAD or DD in certain cacao) Approval UCRC (EAD or DD in certain cases) Approval 13.7.1 Searches - with a warrant or court order (REP) - - Full Only District Court or Order District Court or FISC Order 18.7.1 Full Only Nonaensitive Tlli: coo Review. SAC Approval. Court Order 18.7.2 Electronic Surveillance Title - - - - - Sensitive Tlli: CDC Review. SAC Approval. OGC Review. and Palm] Not Permitted - Use 18.7.2 Approval. Court Order I 13.7.3 and ?mg? . - - . . Full Only Approvals established in FISAMS. FISC Order Approvals established in Order - 'reawnable expectation oi privacy' I ?undercover acliv I "undercover operation? mag" mum turrer r3